In all the sound and fury following the unauthorized release of a 3-month-old draft that may be the Supreme Court's decision in Dobbs v Jackson Women’s Health, blame has been sprayed on everyone except those most clearly responsible for the failure to properly resolve the issue of abortion and the arguably more important question of a Constitutional right to individual privacy. While the press, advocates for and against, and the responsible parties themselves argue about whether to hold Trump, Biden, Justice Roberts or the 6 “conservative” or, if you prefer, “reactionary” Justices accountable for the most recent version of the mess, Congress, including everyone who has served since the Roe decision was rendered in 1973, is going to skate again. Whatever your position on the abortion spectrum, the situation today is a direct result of Congress’ unwillingness for the past 50 years to take a stand in favor of the position held by most Americans (various polls show different percentages but the net result is consistent) and legislate an end to what Justice Alito rightly calls a poor piece of judicial decision making. Whether for fear of the absolutists on either end of the arc or just because the issue itself is too toxic for politicians to act on, both parties have left the responsibility to the Court and taken advantage of the ongoing arguments to raise funds and, in some cases, make careers for themselves. It is to be hoped, although unlikely to be realized, that the reaction to “the leak” will generate real action on the part of both houses to conjure up a bi-partisan bill codifying the widely supported idea that abortion, especially in the first 13 weeks of pregnancy, is a decision solely to be taken by the woman involved and her medical care provider. There are moral, ethical, and philosophical arguments to be made on both sides and those too, in the end, come down to a final judgement that only one person in each case can make, that being the person who will, one way or another, have to deal with the consequences.
The fundamental right being challenged and that formed the basis of the Roe decision, is a right to personal privacy that is, unfortunately, not part of the Constitution although it is arguably the essence of the Declaration’s assertion of rights to life, liberty and the pursuit of happiness. President Biden, among others, is quite correct in fearing that, once Roe is overturned, other similarly based rights, currently taken for granted based on Court decisions, may also be found not to have a basis in law. If we are to move forward as a free, united despite our differences, country, the essential freedom of action of each of us as an individual, limited by the equal freedom and personal sanctity of every other individual must be made an explicit part of the federal Constitution and the Constitutions of each of the several states. Yesterday would have been a good time to have done it, tomorrow would be OK, by Friday, place your bets and take your chances. It won’t, of course, happen that quickly, but the conversation needs to start right now and be driven home to every legislator at any level anywhere in the country. Any resolution short of that will be a band aid on a severed artery and every bit as effective in preserving the civil life and liberty that we’ve come to enjoy.
One certainly doesn’t often hear it argued as you’ve argued it, Dave. Nice to hear, even just as a change from the frothing-at-the-pie-hole that usually dominates the debate. I tend to see it as a context battle, myself. Or maybe there’s a better term for that.