Tomi Lahren recently made the case that conservatives were doing their cause a disservice by openly advocating for a challenge of Roe v. Wade in the wake of Donald Trump’s nomination of Brett Kavanaugh to the U.S. Supreme Court. Well, it’s one thing to repeat liberal platitudes about abortion and “social issues,” as Lahren’s done in the past. It’s quite another thing to contend that opposing Roe v. Wade is just like “spitting” on the Constitution or engaging in “religious judicial activism” — which would be a surprise to this and no doubt many other secular, pro-life Americans.
If Lahren wants to argue that focusing on Roe v. Wade is a mistake on political grounds, that’s her prerogative. She should feel free to take that up with a historically pro-life GOP that’s now running the White House, Senate and House. If she wants to argue that the GOP should avoid “tampering with social issues,” even though she seems exceptionally comfortable engaging in those debates elsewhere, go for it. But if she’s arguing that overturning Roe is an example of “religious judicial activism” — as Lahren does twice in this clip below — you’re not any kind of “constitutional conservative.”
.@TomiLahren: Implying that we’re sending a Supreme Court justice to the bench to carry out religious judicial activism is a mistake and unconstitutional. It’s not what conservatives stand for. pic.twitter.com/025CT3gZ9v
— FOX & friends (@foxandfriends) July 11, 2018
For one thing, it’s a slur to claim that justices who are carrying out their charge to uphold the Constitution are engaging in “religious judicial activism” or something “unconstitutional” simply because their originalist and long-standing legal philosophy happens to align with their spiritual or religious positions on the sanctity of human life. One of the reasons social conservatives gravitated to “constitutional conservatism” is that it protects them from state intrusions. One position does not undermine the other.
Moreover, the central argument against Roe v Wade is not religious but rather that it was defectively reasoned; that justices invented a new constitutional right as a way to circumvent civil debate about the legality, morality, and science of abortion. As liberal pro-choicer Laurence Tribe once famously wrote, “behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”
Even pro-choice Republicans can, and should, view Roe v. Wade as a pristine example of judicial activism. It was, in fact, perhaps the most consequential act of legislating from the bench in American history. Not only did the decision nullify hundreds of existing laws dealing with the matter, it proactively created three-tiered legislation to ostensibly govern abortion (because in reality, there is no real limit, not even after viability), implemented without any genuine consideration for evolving technology or ethics.
Lahren tells us, “If we’re not going to uphold the Constitution on its merit, who will?” Or does Lahren believe that judicial lawmaking is acceptable in cases where it comports with her worldview? If not, does she believe justices should avoid cases related to Roe v. Wade simply because they also happen to be orthodox Catholics? Or is she saying “social issues” should be immune from constitutional oversight because they tend to be politically damaging?
Although it’s counterintuitive hearing a self-proclaimed “constitutional conservative” imploring Republicans to adhere to polls rather than principles on the Supreme Court, if abortion is as popular as Lahren constantly implies — and I doubt it — overturning Roe v. Wade shouldn’t be a big deal, anyway. Overturning Roe v. Wade would not mean a ban on abortion. It would merely allow states, or even cities, to debate, compromise, and craft their own laws governing the disposal of inconvenient human beings. It would take the decision away from a court that unilaterally took ownership of an issue that had nothing to do with our constitutional rights. Lahren has yet to explain why having a desire to fix this injustice is tantamount to “spitting” on the Constitution.
Lahren’s taken a lot of heat for her pro-choice positions, but it’s not really the political apostasy that’s the problem, it’s weakness of her arguments. Few people really understand Roe. And it seems to me that Lahren, who has a big platform to make her case to young people, hasn’t thought about it very deeply, either. It appears as if Lahren is straining to say “I’m pro-choice” while attempting to couch her support for Roe v. Wade in a “constitutional conservative” context. There is none, though.