August 8, 2022

Review and News

65M ladies may just lose abortion rights in Splendid Courtroom case

Neither Washington nor Lincoln can tell us how the justices should rule, despite what some...

Neither Washington nor Lincoln can tell us how the justices should rule, despite what some advocates on each side may claim. But Lincoln does have something vital to teach us about the debate, which is deeply rooted in the Civil War.

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The court based its decision in Roe on the 14th Amendment’s guarantee of due process and equal protection under the law, which was intended to protect Black citizens’ civil rights. Once the court used it to establish reproductive rights, it was inevitable that battles lines would be drawn around different understandings of freedom.

Pro-choice advocates consider abortion to be a matter of women’s emancipation and equality, while pro-life advocates identify themselves as modern-day abolitionists, seeking equality for the unborn. Each side sees the issue as a question of rights, just as abolitionists and Confederates did with slavery — only in this case, each side claims the role of liberator.

By deciding the question for the nation in 1973, before Congress had taken up the issue and as states were grappling with it, the court preempted a debate still unfolding in the public square, a move that Justice Ruth Bader Ginsburg later criticized as contributing to political polarization. Her argument — that the political and legislative process should have been allowed to unfold — formed the core of Lincoln’s reaction to the most divisive court ruling of his day, Dred Scott v. Sandford.

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Abortion opponents often compare Dred Scott’s conclusion — that Black people could not be citizens and slavery must be permitted in federal territories — to Roe. The legal treatment of Black people as less than human, they argue, correlates to the legal treatment of the unborn as less than human. Pro-choice advocates counter that the analogy ignores all the Black women who were raped and forced to give birth against their will.

The argument over Dred Scott isn’t going away, but the public reaction to it — not the case itself — is what holds a critical lesson for both parties.

Lincoln strongly opposed the ruling not only on moral and legal grounds, but on procedural grounds, too. He believed that such weighty questions needed to be decided by the people, not a few judges, as did his fellow Republicans, who assailed the court mercilessly for overstepping its authority.

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In their debates during the 1858 Senate campaign, Senator Stephen Douglas took Lincoln to task for these attacks, accusing him of trying “to bring the Supreme Court into disrepute among the people … destroying public confidence in the court, so that people will not respect its decisions, but will feel at liberty to disregard them, and resist the laws of the land.” Lincoln, he charged, was promoting mob rule.

Lincoln responded by rejecting violence, while also mocking Douglas for treating the court’s rulings as holy writ: “a decision of the court is to him a ‘Thus saith the Lord.’” He returned to this point in his first inaugural address, which we remember for its poetic rhetoric — the “better angels of our nature” and “mystic chords of memory” — while forgetting its blunt denunciation of judicial rule:

… if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made … the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.

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A year later, Congress passed and Lincoln signed bills that flatly contravened Dred Scott by emancipating slaves in Washington D.C. and the existing territories. In effect, Lincoln and Congress said to the court: Buzz off. Matters of fundamental freedoms are the domain of elected leaders, not appointed judges.

Now, against that backdrop, consider the Democratic response to Roe. For five decades, pro-choice politicians have viewed the court’s decision as settled law, absolving them of the need to act. They have done little more than pay lip service to the idea of passing a bill codifying Roe and guaranteeing women’s reproductive rights.

Even when Democrats have controlled Congress and the White House, the party’s position on abortion has been defined by complacency and avoidance. During President Barack Obama’s first two years in office, when Democrats held supermajorities in the House and Senate, they made no push to pass a bill. As a candidate, Obama had told a Planned Parenthood audience, “The first thing I’d do as president is sign the Freedom of Choice Act. That’s the first thing that I’d do.” Four months into his term, when asked about the bill at a news conference, he responded, “the Freedom of Choice Act is not the highest legislative priority.” In fact, it wasn’t a priority at all — the bill was never even introduced.

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When NARAL Pro-Choice America was later asked about this, the group said the reason the bill was never introduced was simple: They didn’t have the votes to pass it. That admission spoke volumes about how little interest congressional Democrats had in sticking their necks out — and how little pressure Democratic voters placed on them to do so.

Only after Roe began teetering last year did they act. As the Supreme Court heard arguments in the Mississippi case in September, the House passed the Freedom of Choice Act. The Senate should be able to pass a bill, too — Republican Senators Susan Collins and Lisa Murkowski have long supported Roe — but at least for the moment Democrats appear more committed to preserving a procedural rule, the filibuster, than abortion rights.

Would Lincoln have allowed the filibuster to prevent a vote on a bill outlawing slavery in the territories and Washington, D.C.? Based on his view of Dred Scott, fat chance. The people, he believed, must be heard.

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In a famous 1984 speech at the University of Notre Dame, New York Governor Mario Cuomo laid the onus on the Catholic Church for convincing the public that abortion is a moral wrong before expecting legislators to ban it. He was right, in my view, but he neglected to say what has proved no less true: There is also an onus on abortion-rights supporters to persuade their representatives to endorse it. That has never happened. Roe provided a false sense of security that led Democrats to view the court as they did after Dred Scott: an adequate substitute for the will of the people.

Roe has allowed Republican politicians to avoid responsibility, too. Quietly, many would rather preserve abortion rights for political reasons, given public polling showing majority support for them, while others are happy to let the court take the blame for overturning Roe. If Republicans in Congress believe that abortion is murder, they must believe that murder is a lesser crime than ending the filibuster, because during the first two years of Donald Trump’s presidency, the Republican-controlled Senate opted to keep the arcane rule rather than save the unborn.

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Legislators in both parties have lacked the courage of their convictions. The court has become a stand-in for Congress on fundamental rights, including gay rights, because members have been unwilling to stand up and be counted.

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Lincoln held a different view of democracy. “Of the people, by the people, and for the people” did not mean legislative abdication and judicial genuflecting. It meant vigorous action by the people’s elected representatives.

Historians regularly rebuke Lincoln for showing a lack of deference to the judiciary, but their criticisms typically center on his decision to ignore a Supreme Court ruling that he lacked authority to suspend habeas corpus. This, historians have often told us, was a grave mistake — even as they fail to carry their logic further by saying that the adoption of emancipation laws in defiance of Dred Scott was a grave mistake, too.

For Lincoln, as for the Founders, the Constitution’s checks and balances did not require thinking of the judiciary as the first among equals — or even as an equal. Only two of the three branches include elected representatives, and it is their obligation to be the primary voice of the people. The court can and must constrain the people’s voice to prevent a tyranny of the majority, but it cannot replace it. Democracy is not a passive activity.

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If the court establishes a new constitutional right that, after a half-century, the people never endorse or reject through their federal representatives, it should not come as a surprise that a later court might take a different view of the issue. But for 49 years, Democrats have mistaken silence for governance.

Today, as the court considers rolling back or reversing Roe, Democrats appear to be coming around to Lincoln’s position — that the people must speak, lest the court speak for them. As a supporter of abortion rights, I’m glad to see it. Let’s move the debate from nine robed jurists with lifetime tenure to the 535 people who must answer to all the voters — and call the roll.

Something to think about while shopping for a new mattress.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Frank Barry is a columnist for Bloomberg Opinion.


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