The Spirit & the Letter

De jure and de facto this means ‘let the states do it’ unless clear textual evidence exists in the Constitution and its Amendments that the federal power can be legitimately used. The right to an abortion is not up there with life, liberty and the pursuit of happiness — it is a lesser thing, whatever it may be — and the federal government sholdn’t care. I am in no position to argue that the constitutional reading made by these five formidable judicial minds is legally mistaken, and I won’t attempt to go there. They have said that reproductive rights issues are a matter for the states to regulate — where do we go from there?

Predictably, the rhetoric on both sides is already overheated. I believe I saw the words ‘armageddon’, ‘blood on the streets’ and ‘civil war’, all in one piece of journalism. I shudder to think what is happening on social media which, of course, is usually such a bastion of civility and decorum. Let’s try and evade the charge of the Four Horsemen and take a look at this decision sans hysteria.

One thing that stands out in sharp relief is the almost ludicrous disjunction between those affected and those who will be making the rules. The empty formalism of this Decision is most transparent here. Anyone who has a nodding acquaintance with the composition of state legislatures can make the following descriptive points without fear of contradiction — overwhelmingly male, overwhelmingly older or downright old, mostly wealthy and white, and, at least professedly, religious. Yet the weight of the laws these Good Ole Boys make will fall most heavily on poor, ethnic Generation Z women, (ethnicity and poverty being heavily correlated). It is interesting to note that fewer and fewer of Gen Zs profess adherence to any religious denomination. Is this representation? Is this coterie of legislators not likely to be disproportionately influenced by organized groups with lobby power – and not those most directly impacted by draconian abortion restrictions. Are these young women who have (hitherto) often not voted or organized themselves going to have their voices heard? Obviously this remoteness of law makers from the consequences of their work is not limited to this issue only, but the gap seems particularly egregious when the political teeter-totter thrusts these hapless pregnant women up in the air while the legislators preen about their moral rectitude while safely on the ground. It would appear that the text-book definition of representation was enough for the Majority in this decision — context-blind indeed!

On a more positive note, it is not likely that we will see a reversion to back-alley butchery at the hands of drooling incompetents wielding rusty knives. Turning back fifty years of medical progress was not within the Court’s purview. Pregnancies can be terminated with oral medications now, and efforts to restrict access to these medications will no doubt be as successful as all of America’s other efforts to restrict access to drugs for which there is a vigorous demand. Efforts to restrict dissemination of information on options for young women dealing with an unwanted pregnancy will almost certainly fail as well. 

How much more difficult will it be to obtain medically-assisted abortions? Some useful geographers have already published research findings estimating that pre-the Roe V. Wade overturn, a woman had to travel an average of 37 miles to receive a medically-assisted abortion. Looking at the juxtaposition of liberal and likely to be restrictive states, this study posits that a woman will now have to travel an average of 249 miles to receive that same assistance. A forty minute bus ride becomes a four-hour bus ride. This is material, but not cataclysmic. I do not see a second Gettysburgh arising, with brave ranks of young women charging up Little Round Top to unseat well-entrenched evangelicals. However, I do hope that the hypocritical Good Ole Boy in Texas who has just arranged an easy abortion for his wayward fourteen-year old daughter is run over by a bus carrying some of these poor young girls to another state.

What does this Decision mean on the political front? One must assume that the GOP is feeling  frisky post the Decision.Our appointees came through — let’s have tee shirts made! But they may want to think again. Nothing is going to help the Dems in 2022, short of gas at 20 cents a gallon. But let’s look at 2024 and beyond. In that next presidential year, the two younger generations are expected to equal the older ones as a share of actual voters on Election Day. And by 2028, Millennials and Gen Z will dwarf the older generations as a share of both eligible and actual voters. That will be true not only nationally, but in all the crucial battleground states. Fifty-three percent of voters under thirty voted in 2020 and they voted Democrat by a margin of 61 to 39 percent. Much of this turnout was motivated by the fact that Donald Trump was on the GOP ticket. If one can assume that the Democrats find a way not to run an increasingly aged Joe Biden back out there in ‘24. (if they do run Joe out again, all bets are off), the Republicans could end up battling both Trump distaste among young people and a lot of Gen Z women angry enough about reproductive rights to get out and vote in historic numbers.

Add to these ominous demographic prospects the fact that as recently as 2008, seventy-nine percent of Americans identified as Christians; but by 2024 this percentage will have dropped into the fifties. If one wanted to throw a lifeline to the GOP to countervail these worrying trends, one could argue that voters age-up into conservativee  views over sufficient time. Unfortunately there is not much statistical evidence that this is true. And if it were true in some areas, (you might become more concerned about property crime as you acquire more property), your values, your beliefs about religion and freedom of the person do not change materially with age.

It has often been said that the legal and the moral are only occasionally in sync. It was recognized in ancient Roman jurisprudence that an absolutely valid interpretation of a law can lead to absolute injustice. The Roe V. Wade overturn may be legally defensible on a constitutional reading that is, if nothing else, venerable. But it is purblind, myopic, and fails to provide justice to those affected because they cannot trust the disinterest or compassion of those now making the rules for them. People will die because of this decision. Not, except rarely, because of botched abortions, but because extremists on both sides have had their fervency injected with rocket fuel. And thanks to the second Amendment, that untouchable piece of holy constitutional writ, those “full of passionate intensity” all have guns.