President Joe Biden is continuing to recklessly attack the Supreme Court for its decision overturning Roe v. Wade in the Dobbs v. Jackson Women’s Health Organization case. “This was not a decision driven by the Constitution,” the president said on July 8th as he prepared to sign executive orders purporting to protect access to reproductive health services and women’s privacy. “And despite what those justices in the majority said, this was not a decision driven by history.”
President Biden claimed that “the Court has made clear it will not protect the rights of women.” He accused the Court of rendering a “decision based on a reading of a document that was frozen in time in the 1860s” and then practically daring “the women of America to go to the ballot box and restore the very rights they’ve just taken away.”
The president added that “what we’re witnessing wasn’t a constitutional judgment. It was an exercise in raw political power.”
President Biden is wrong on all counts. He is the one trying to wield “raw political power” with his outrageous attack on a co-equal branch of government, whose independence is key to preserving the rule of law. The justices took themselves out of playing the role of unelected legislators who would presume to rewrite the Constitution and create a “right” that was never there to begin with in order to achieve a particular policy outcome. The majority opinion in the Dobbs v. Jackson Women’s Health Organization case clearly explained that the Court was simply returning abortion-related issues to the states’ elected representatives to handle, as the elected state officials had done for nearly 200 years.
In short, the Supreme Court ruling did not take away any rights from women that were legitimately rooted in the U.S. Constitution. It modestly asserted neutrality on the contentious policy issues involving abortion that the Roe decision failed to settle when the Supreme Court majority at that time arrogated power to themselves to legislate from the bench. The late Justice Ruth Ginsburg recognized as much when, shortly before her confirmation hearings in 1993, she said that Roe v. Wade “invited no dialogue with legislators. Instead, it seemed entirely to remove the ball from the legislators’ court. In 1973, when Roe issued, abortion law was in a state of change across the nation.”
State laws were already evolving in a more liberalized direction. What the Roe decision had done was to freeze the state of play from on high and leave, Justice Ginsburg said, “virtually no state with laws fully conforming to the Court’s delineation of abortion regulation still permissible.”
Ironically, if we go back and look at the writings of Planned Parenthood’s founder Margaret Sanger, we will find that she was not a fan of abortion. She did espouse the notion of the “slave-mother” whose freedom would come, she said, only when capitalism was swept away. And Ms. Sanger strongly advocated birth control as a means to keep down the population, which took a racist turn in a 1921 article of hers that appeared in the Birth Control Review. She wrote about cultivating “the better racial elements in our society” and eliminating those human weeds which threaten the blooming of the finest flowers of American civilization.” (Emphasis added)
But despite her leadership in the birth control movement in support of fostering female bodily autonomy, Ms. Sanger did not go so far as to contemplate abortion as a legitimate exercise of such autonomy. “While there are cases where even the law recognizes an abortion as justifiable if recommended by a physician, she wrote in Woman And The New Race, “I assert that the hundreds of thousands of abortions performed in America each year are a disgrace to civilization.” Ms. Sanger wrote that abortion was “a disgrace to civilization” more than fifty years after the adoption of the 14th Amendment to the Constitution, which the Roe decision used to manufacture a constitutional right to abortion.
President Biden has not only misstated the historical context in which the Supreme Court rendered its decision overruling Roe v. Wade. He clearly lacks an understanding of the history of the reproductive rights movement, whose leading founder clearly declared her opposition to abortion during the same year that women were granted the constitutional right to vote.
President Biden’s claim that the Supreme Court had “made clear it will not protect the rights of women” is patently false. Indeed, Biden undercut his own argument when he quoted from the majority opinion in reference to women’s electoral and political powers. “That’s another way of saying that you, the women of America, can determine the outcome of this issue,” the president said.
Without realizing it, the president essentially admitted what the Court majority in the Dobbs case had actually done. Their decision recognized that voting and involvement in politics is more empowering for women than relying on nine unelected justices, a majority of whom have been men, to impose their will nationwide.
The problem for President Biden and his left-wing pro-abortion base is that not all women view the abortion issue the same way. Indeed, there are some puzzling inconsistencies. A majority do support Roe v. Wade, at least in general terms that pregnant women should be able to obtain an abortion in some circumstances. However, at the same time, according to a recent Harvard CAPS Harris Poll, 47% of the women polled believe that it is better for abortion standards to be set by the legislatures of the individual states. Only 24% believe that it is better for abortion standards to be set by the justices of the Supreme Court. Just 29% believe that it is better for abortion standards to be set by Congress. A large majority of women polled (75%) believe that their state should allow abortion no more than 15 weeks after pregnancy, which was the limit set by Mississippi that was at issue in the Dobbs case.
These findings reinforce what Founding Father James Madison wrote in Federalist No. 46: “Many considerations… seem to place it beyond doubt that the first and most natural attachment of the people will be to the governments of their respective States.”
The Left does not trust democratic processes to make policy decisions. So, they are resorting to violence and intimidation. One radical group, Jane’s Revenge, has claimed credit for firebombing and vandalizing Right-to-Life pregnancy centers. Another radical group, ShutDownDC, has offered to pay a bounty to D.C. service workers who report the spotting of conservative justices in restaurants and other public venues.
Some leftists are resorting to arguing that government interference with the right of a woman (or, to use woke terminology, a pregnant person) to choose to have an abortion harks back to the days of state-sanctioned slavery.
Vice President Kamala Harris sought to link the Supreme Court’s decision overturning the 1973 Roe v. Wade ruling to the legacy of past governmental actions “trying to claim ownership over human bodies.”
Lisa A. Crooms-Robinson, a professor at Howard University School of Law, was even more explicit in her op-ed article on abortion and slavery. “Denying the rights of reproductive health and choice, bodily integrity and personal autonomy was essential to U.S. slavery,” she wrote, “which recognized enslavers’ complete dominion over the people they enslaved. U.S. slavery also forced enslaved women to reproduce, which fueled the domestic slave trade after the official prohibition on the importation of enslaved people into the U.S. in 1808.”
Professor Crooms-Robinson recommended that pro-abortion lawyers start by using the Constitution’s 13th Amendment, which she said was aimed at blacks in abolishing slavery, as the constitutional basis for protecting blacks’ reproductive rights including abortion. The next step would be to use the 14th Amendment’s Equal Protection Clause to “allow non-Black people to assert their right to enjoy the same rights the 13th Amendment grants to Black people as a matter of racial equality.”
The professor’s premise is that government regulation of abortion deprives black women of a constitutional right embedded in the 13th Amendment that was supposedly intended to do away with slavery’s denial of reproductive freedoms including abortion. Then, following her fallacious premise to its illogical conclusion, once black women are protected from governmental interference in their decision to have an abortion, all other pregnant women must be accorded that same protection.
Recall that Margaret Sanger had talked about liberating all women from being relegated to the status of a “slave-mother.” But abortion on demand was not her solution.
The Left is clamoring for President Biden to exercise even more raw political power to entrench abortion on demand nationwide than he has already tried to do. If the president bows once again to their pressure, he may get another chance to deal with the Supreme Court he so detests.