Colorado Editorials

The Colorado Springs Gazette: Supreme Court won’t ‘outlaw abortion’

Author: The Colorado Springs Gazette Editorial Board - July 10, 2018 - Updated: July 10, 2018

As the Senate vets Brett Kavanaugh for the Supreme Court, Roe v. Wade hype will pervade as if we have traveled back to 1973. The landmark abortion case provides a sorry excuse for accepting or rejecting the nominee.

Don’t fall for the histrionics. Americans will retain access to legal abortions, for better or worse, regardless of any court decision affecting Roe v. Wade.

MSNBC anchor Rachel Maddow warns repeatedly the new majority will “overturn Roe v. Wade and outlaw abortion.” That baseless phrase inspires a rally cry on both sides of the debate.

It should not. In overturning Roe v. Wade, the court would not “outlaw abortion.”

For the sake of understanding the court’s practical limitations, contemplate federal law and pot. The Supreme Court reaffirmed federal laws forbidding cultivation of marijuana, even for medical use, with its 2005 ruling in Gonzales v. Raich. Despite crystal clear federal rules against cultivating pot, for any reason, Colorado and other states host flourishing marijuana industries that operate in full view on Main Street.

Meanwhile, the federal government has never tried to outlaw abortion. If states can protect pot from federal laws and a recent Supreme Court ruling upholding them, they won’t have trouble maintaining legal abortion.

Contrary to conventional wisdom, Roe v. Wade did not legalize abortions that were otherwise federally forbidden. The ruling merely prevents states from placing sweeping prohibitions on abortion.

Colorado, first in pot and abortion, decriminalized abortion in 1967 — six years before Roe v. Wade.

Much like the movement toward marijuana legalization, 13 states relaxed or eliminated abortion restrictions before the ruling in Roe. As abortion rights became a key platform of the feminist movement, a majority considered easing or eliminating restrictions with or without Roe v. Wade. Socially, the country has drifted left since 1973.

Even pro-choice legal scholars criticize Roe as a decision based more on a growing trend than legitimate constitutional authorization. They use the ruling to illustrate “judicial activism,” and “legislating from the bench.” Founders empowered the court only to interpret laws, not to create them.

Regardless of where one stands on the spectrum of abortion politics, most agree the topic makes up an extremely complicated policy matter that divides Americans. The debate tangles science, religion, civil rights, and gender conflicts into an intractable conundrum.

The country’s founders intended states, not federal government, to grapple with our more complicated policy issues. They made this clear in the 10th Amendment, which declares: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

That law might explain why the government makes no serious effort to enforce federal prohibition of pot. The Constitution does not delegate drug enforcement to federal government. Likewise, it does not authorize Washington judges and politicians to regulate reproductive rights. Judges upholding the original intent of the Constitution frown upon Roe v. Wade, regardless of their views on abortion rights.

Justice Louis Brandeis, an appointee of President Woodrow Wilson, expressed the principle of federal restraint in a ruling allowing states to demand licenses for the private sale of ice.

“It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country,” Brandeis wrote in New State Ice Co. v. Liebmann.

Note the part about “risk to the rest of the country.”

States neighboring Colorado complain the novel social and economic experiment of pot legalization harms the rest of the country, because marijuana crosses state lines. Even with physical evidence and a Supreme Court ruling to support their claim, the federal government does not stop states from allowing marijuana.

Back in 1967, when Colorado allowed abortion, neighboring states had no claim the policy jeopardized the public health and welfare of their residents. They had no federal prohibition to invoke, let alone a Supreme Court ruling backing it up.

Given this framework, one cannot seriously conflate reversal of Roe v. Wade with outlawing abortion. Colorado and other moderate-to-liberal states will double down in codifying abortion rights.

Socially conservative states will experiment with everything from gestation-based restrictions to full interdiction. Residents of those states will exercise the right to travel for abortions, just as they do to circumvent state restrictions on late-term abortions that fall within confines of Roe v. Wade. If only one state allows abortion — and there will be many — abortions remain legal for every woman in the United States.

A new court majority might or might not overturn Roe v. Wade. Either way, the court won’t “outlaw abortion.”

The Colorado Springs Gazette Editorial Board