Maybe They Missed That Class

Maybe Justice Kavanaugh has never read the Bill of Rights. More possibly, he probably spilled beer all over his copy. Whatever the reasons, it is hard to imagine how he, and, sadly, the other conservative Justices on the Supreme Court, could be sympathetic to the proposition that abortion should be left to state legislatures and, hence, to the voters. At least, that was what they implied (to put it mildly) during the oral arguments in the Mississippi abortion case this week.

Everyone has an opinion about abortion (except Clarence Thomas who swore during his confirmation hearings that he’d never even discussed it – the very definition of “pants on fire”). The thing is, in stuff like this, our individual opinions don’t matter. The Bill of Rights matters.  Now, you may say (if you talk out loud while you read) that the people make the law.  Why can’t they make this law? The answer is that people make the law unless the Bill of Rights says that they can’t. The Founding Fathers distrusted democracy. They built in all kinds of checks on what they called “the tyranny of the majority.” Among the most important of those is the Bill of Rights. It prevents laws that abridge our basic freedoms. That seems like Constitutional Law 101, but the conservatives on the Court seem to have cut that class (or, in Kavanaugh’s case, maybe he was distracted because he was pawing a co-ed in the back row.

The anti-abortion laws propose conditions that would deprive women of certain liberty – the liberty to choose to abort a pregnancy. Liberty is a constitutional right. It comes out of the Fifth and Fourteenth Amendments. That means that states can’t make laws that deprive people of that right.

Some cling to the belief that personhood begins at conception (these include Trump voters whose maturity was apparently stunted at that point) and that women have no rights once Mr. Sperm meets Mrs. Egg. Unless you are among that crew, then it is only at the earliest point of personhood, not conception, when a mother loses her liberty interest, and the fetus/person achieves its own rights. That point – the point at which a woman’s liberty is diminished – is not for individual voters to determine.  Individual voters cannot Constitutionally pass a law that deprives a person of liberty. If each state established its own standard, then that is exactly what would be happening. I, for example, have my own standard. I believe that the earliest at which an utterly immature fetus should be considered a person is the point when it can’t stand Steven Seagal. (Mark – that was for you). 

So, as difficult as that line-drawing is to accomplish, it cannot be left to the people. Take, for example, the case everybody knows and reveres – Brown v. Board of Education. Suppose in that case that the Supreme Court had done what Kavanaugh and the others want to do now.  Suppose they had just said that segregation of schools is a very difficult problem; that many people have many different opinions about it; and so, we’re going to leave it to the state legislatures to figure it out for themselves.

Thank goodness, the Supreme Court didn’t do that. Thank goodness (and, most of all, ironically, led by a Republican nominated Chief Justice Warren) they said that segregation violated people’s constitutional rights and could not be left to the states.

During the oral argument, while arguing why the Court should not be reluctant to over-rule its prior Roe decision, Justice Kavanaugh pointed to the Brown case, noting that it over-ruled the prior Plessy case. He then asked, “where would we be today, if the Court had not been willing to do that?”

Well, if Justice Kavanaugh were here with me now (beside the fact that I would have to go out and get more beer) I would have to ask him this: “where would we be today if the Brown Court had done then what you want to do now?”