States — not jurists — should decide on abortion restrictions

By Hugh Hewitt – June 7, 2021

Sometime next year, the Supreme Court will decide whether to continue to find the right to abortion in the Constitution or give up on its deeply misguided, half-century-long effort. The court will have before it not just the case of Dobbs v. Jackson Women’s Health Organization and the constitutionality of a 2018 Mississippi law that banned abortions after the first 15 weeks of pregnancy. The court will also be deciding whether American politics will remain twisted by a poor decision made at the intellectual low ebb of its postwar era.

Last week, The Post’s Ruth Marcus put forward a blunt explanation of how the decades-long struggle over abortion laws began. “No one reads the Constitution and concludes: This document obviously protects a woman’s right to choose,” she conceded. “The right to abortion flows logically, if not ineluctably, from this understanding: that women have the right to control their own bodies,” she added.

The response is simple: The court is not charged with taking leaps of logic that are contrary to common sense or the plain meaning of the Constitution. The Constitution says nothing about abortion, nor does it empower the Supreme Court to forage about looking for the hidden rights so long urged on it by the “living Constitution” enthusiasts in law schools.

The Constitution was never intended to be mysterious. It was written to be understood and adopted by an agrarian and small merchant class of 1787 through 1789 in state ratification conventions. Its authors (and the delegates to those conventions) were all White, all male, and all driven by the common sense of the age. I am often reminded of the comments by a farmer named Jonathan Smith at the Massachusetts ratification convention, who helps make the case against the idea that we can now, centuries later, find new meaning in the document.

Speaking at the convention, the farmer said: “Mr. President, I am a plain man and get my living by the plough. I am not used to speaking in public, but I beg your leave to say a few words to my brother plough-joggers in this house.” He then explained that it was a document that one did not need a lawyer to understand. “I got a copy of it and read it over and over … I did not go to any lawyer to ask his opinion. We have no lawyers in our town, and we do well enough without. I formed my own opinion and was pleased with this Constitution.”

I am pleased by the Constitution too, and by its amendments — especially the 13th, 14th, 15th and 19th — necessary as they were to move the nation into the modern world of race and gender equality before the law. But while there is clearly a right of privacy that has been teased out of a variety of “emanations” from its original provisions and subsequent amendments, that right is not malleable into whatever a majority of nine justices say it is.

Marcus correctly notes that the Griswold v. Connecticutcase is where privacy staked its claim to constitutional status. Justice William O. Douglas wrote then, in constitutionalizing the right to contraception, that the idea had percolated from previous cases that “suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”

Open field running on the Constitution thus began — and has never stopped.

The power to reason what might have been included in amendments became what “should have been” — and was then left to what “must be” found within the Constitution. That is not interpretation. That is lawmaking.

The court made law in Roe v. Wade. Justice Harry A. Blackmun’s opinion was awful in its reasoning, as is generally agreed now, and it has been refined and restricted further (without the court explicitly saying so) by a number of rulings in the 48 years since. The Mississippi case will go further to settle the question about what a state legislature can do.

The path Marcus proposed would end up at the conclusion: nothing at all. My view is that state legislatures may pass laws on abortion covering everything, including an outright ban. Some states are ready to go that route; others will choose a path of abortion largely free of most restrictions. The important thing is that the states, not jurists, will decide. All of the factors and forces that supposedly limit state legislatures’ ability to restrict abortion will collide again in statehouses across the nation.

When did the “culture wars” begin? I would argue for 1973, when the court seized territory reserved for the state legislatures. Will the court let us have peace at the cost of admitting that its ambition to rule was the real spark for the fires long burning? Wisdom — not logic — and the express language of the Constitution counsels it to quit the field.

Read more:

Ruth Marcus: Leaving abortion to the states makes them agents of oppression

Neal Kumar Katyal: The Supreme Court may toss Roe. But Congress can still preserve abortion rights.

Hugh Hewitt: The sad self-importance of journalists

Jennifer Rubin: The Supreme Court’s abortion case fundamentally changes upcoming elections

Kate Cohen: On TV, abortion is the road less traveled. Life’s not like that.

Hugh Hewitt, a Post contributing columnist, hosts a nationally syndicated radio show on the Salem Network. The author of 14 books about politics, history and faith, he is also a political analyst for NBC, president of the Nixon Foundation and a professor of law at Chapman University Law School, where he has taught constitutional law since 1996. 

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