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Conservatives Should Absolutely Fight For A Supreme Court That Would Overturn Roe

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Law – especially constitutional law – shouldn’t be made on the basis of policy preferences. Abortion is no exception.


Fox News contributor Tomi Lahren has once again caused a firestorm on the right for voicing a pro-choice view, this time, begging the right not to “push” for the overturn of Roe v. Wade. Lahren’s appeal joins the hysterical cacophony from the left over the nomination of Judge Brett Kavanaugh to the Supreme Court and the alleged possibility of Roe getting reversed.

“Do we really want to fight for this — alienate Democrats, moderates, and libertarians, all to lose in the end anyway?” she asked. “That’s a risk I don’t think is worth taking. I’m saying this as someone who would personally choose life, but also feels it’s not the government’s place to dictate. This isn’t a black and white issue and I would never judge anyone in that position.”

While the left has lauded Lahren’s position and even suggested that she ought to be an “example for conservative women,” the reality is actually the opposite: Americans across the political spectrum should support justices who will overturn the judicial gag order Roe and subsequent cases imposed on Americans on the subject of abortion, and let a country deeply divided over this moral issue duke it out in the public square.

Due process is a foundational guarantee of any free republic. The roots of the notion that a just government cannot deprive its citizens of liberty and property arbitrarily stretch back to the Magna Carta. But the Supreme Court’s interpretation of so-called “substantive” due process, as Justice Thomas wrote in his dissent in Obergefell, has “invoke[d] our Constitution in the name of a ‘liberty’ that the Framers would not have recognized, to the detriment of the liberty they sought to protect.”

It’s true that the Bill of Rights was never meant to be an exhaustive list of the liberties of the people (which was part of James Madison’s original argument against including it). But prior to the wand-waving that is the modern substantive due process doctrine, judges at least endeavored to limit their interference to cases where the rights at risk were so fundamental and well-rooted in our history and jurisprudence that they ought to restrain even the broadest powers granted in our federalist system – the police power of the states, as exercised by the democratic will of the people. In Roe, the Court dispensed with that restraint, to the detriment of both the rule of law and democracy.

As a practical matter, it’s highly unlikely that the entire line of expansive substantive due process cases will be reversed by adding even the most firebrand conservative to the Court. On the abortion front, we’re far more likely to get a reading of Casey v. Planned Parenthood that grants states the power to regulate abortion within wider bounds, especially in the second and third trimesters. That more likely outcome places the rightmost bound of abortion policy (which will be different across the states) in about as radically a pro-life place as the abortion regime of, well, almost the entire continent of Europe.

But law – especially constitutional law – shouldn’t be made on the basis of policy preferences. In that realm, they should have no more weight than the opinion polling Lahren cites in support of keeping Roe.

In Lawrence v. Texas, another substantive due process case, the Court struck down a law making sodomy between consenting adults a crime. To be crystal clear, this is a policy goal I am entirely in sympathy with; no state should make homosexual relations a crime, and fortunately today a vanishingly small number of people would support such a law.

But the concept of due process that the Court used in Lawrence, Casey, and yes, Roe v. Wade, would have been foreign to the men who drafted and ratified the Constitution and the post-Civil War amendments it invokes. The Constitution does not bind us to the Founders’ social views or understanding of human sexuality, but rightly leaves those thorny and ever-changing debates to us, the people, and thus to the states.

By endorsing the legal fiction that the highest law of the land protects the “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” the Court has done an end-run around the safeguards the document was meant to place on the federal government, and usurped the democratic power of the American people. This concept, that the Constitution enshrines the social views of the moment based on the magic divinations of five out of nine black-robed kings, is, in the late Justice Anthony Scalia’s memorable phrase, “the passage that ate the rule of law.” By inserting itself to attempt to end the debate over abortion, the Court instead has both politicized itself and ensured that that the issue remains at the forefront of every national election.

Overturning Roe v. Wade would not make abortion illegal overnight. Instead, it would return debate over a profound moral, philosophical, and cultural question to the people of the United States, exactly as the Founders intended.