UNDER THE MICROSCOPE: On Mother’s Day 2022, Life Detective investigates the leaked decision of the Supreme Court of the United States (SCOTUS) which purports to terminate the “Roe” national standard for abortion. Rather than continuing to leave pre-viability abortion decisions (or a smaller number of such decisions) to women and their doctors, SCOTUS will empower each state government to decide. Enabling a patchwork of fragmentated laws fails to respect the American tradition of compromise. In turn, it threatens the viability of SCOTUS and the Nation.
Abortion is a political, societal, and moral issue without parallel when it comes to sheer complexity and the level of emotion it invokes. And opinions? They run the gamut from “abortion should never be legal” (or even the Catholic Church perspective that the mere use of contraception is inherently evil) to abortion should be in the discretion of the mother until birth. No matter what SCOTUS decided, some group was going to be unhappy.
What is clear at this moment? Americans are divided into blue and red camps. Faith in government and its courts is shaken. What needs to be made paramount is preserving this fragile union of states. Our nation’s Constitutional history teaches us that compromise is essential.
The United States: Child of the Great Compromise
For all the words of wisdom contained in our founding documents, the one word that stands out from the sausage-making process of forming the nation’s government, known as the Constitutional Convention, is COMPROMISE. In fact, historians tell us that finalizing the Constitution depended upon The Great Compromise. This Compromise led to the creation of a bicameral legislature: two houses of Congress which included a Senate with equal representation by state. The Senate was added to appease less populated states. Furthermore, in what I’ll call the “less than great” Three-Fifths Compromise, Southern states also counted three-fifths of their slave population in determining taxation and representation in the House of Representatives. WTF? Forget the counting, how did we go from “All Men are Created Equal” in 1776 to slavery NOT being directly outlawed in 1787? And what were adult women at the time? Counted as one person but with one-quarter of the rights? Ultimately, rather than allowing Southern states to abort the baby known as the United States before its birth, the Constitutional Congress compromised on even the most strongly held beliefs. And as a result, the United States was born.
A Nation Divided Cannot Stand
America’s viability and leadership is not dependent upon family lines, but rather a democratic system of institutional governing that enables the nation to extend its life beyond that of its leaders. Above all, the Constitution is a testament to a prime objective: to establish a more perfect union. In the Constitutional Convention, creating that union required compromise. After a bloody Civil War, the 14th Amendment adjusted the Constitutional Convention compromises and arguably set forth the authority of SCOTUS to enforce future compromises that maintained the union, extending Constitutional protections to state actions.
Seemingly following this guidance, the “Nine Wise Souls” of SCOTUS had established a national abortion standard in 1973’s Roe decision and reaffirmed it in 1992. One might argue as to whether the lines drawn regarding trimesters and “viability of the fetus” were right or wrong. One might argue as to whether the national legislature should have been the one enacting the standard as is done in most modern countries. But in the American system, it was left to SCOTUS. And SCOTUS’ decision in Roe seems downright “judicial” in striking a balance. Even though 61% believe abortion should be legal in all or most cases and 80% of Americans support some level of legal abortion, not everyone was going to be happy. Roe was no doubt a compromise of sorts. Without it, the result would likely be 15 states doing one thing, 13 states doing another, and 22 doing another. With respect to the ultimate Constitutional function of creating a union of states, a Roe-style standard made sense.
Today’s SCOTUS Aborts Yesterday’s SCOTUS
SCOTUS is a single institution. The merits of the current case are complicated. However, in this case SCOTUS disrespected itself by not honoring its own prior decisions. Legal scholars call respect of prior decisions stare decisis. Practically, when SCOTUS ignores recent precedents, it looks a lot more like SCOTUS failing to “protect the shield”, aborting its own institution or at least peeing on the graves of recently deceased SCOTUS justices. How can the rest of America have faith in SCOTUS when it doesn’t respect its own decisions from 30 years ago?
Moreover, today’s SCOTUS failed to enforce the system of national compromise that has been embedded in our Constitutional processes. It did so in derogation of the clear preferences of the majority. SCOTUS could have tweaked Roe by further limiting abortion availability. This would have given sustainability to the effort to attain a more perfect union. Instead, they pulled out Lady Justice’s sword and split the baby known as the United States of America.
Time to Split the Empire?
Ultimately, the unity of a nation formed from compromise is weakened when states vary on fundamental issues. As noted in a prior article, there already exists skepticism regarding judicial impartiality. This skepticism weakens the confidence in the rule of law and the government overall. It should not be controversial to say that our country is very divided, mostly along blue-state/red-state lines.
I learned from my visits to Tea Party meetings a few years back that the typical lifespan of empires was estimated to be 250 years. As some believe the United States is indeed an empire, and since that empire is nearly 250 years old, some may believe that the country is about to expire. However, from the beginning, this nation’s Constitutional structure was designed for longevity, as evidenced by setting the target as “a more perfect union.” And to achieve a more perfect union, we absolutely need unity first! This means member states must sometimes compromise and, sometimes, SCOTUS must force compromise. If it does not, SCOTUS fails to fulfill its duty to uphold the most fundamental Constitutional concepts. Instead, it looks like it is trying to make the “250-year empire expiration date” a self-fulfilling prophecy.
