Curt Smith: The court’s abortion decision is a civics lesson

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Curt SmithCritics of the recent U.S. Supreme Court ruling on abortion would do well to absorb its civics lesson and not just hyperventilate about its effect, however considerable that effect might be.

Put away abortion politics, set aside personal feelings of disappointment or joy, and consider the decision’s essence as a lesson—because every U.S. Supreme Court decision, at its heart, is a civics lesson.

In the majority opinion, Justice Samuel Alito declares simply that neither the Constitution nor anything in our national history or traditions gives the federal government the power to regulate abortion. In our federal system, where the national government has limited, enumerated and separated powers, such “silence” means the issue rests with the states and the people. As Justice Brett Kavanaugh wrote in a concurring opinion, the Constitution is neutral on abortion—it neither favors nor opposes.

That is why the 1973 case was wrongly decided, said the majority, which, accordingly, overturned a nearly 50-year-old, court-created right. For this court, including adopted Hoosier Justice Amy Coney Barrett and Hoosier-raised Chief Justice John Roberts, abortion is a state issue.

The ruling merely righted a wrong done in 1973 and doubled down on in 1992. That is all the majority said in handing down its decision.

Some will reject the court’s plain statements, suggesting it has hidden its true intent in such legally pious language. But a century from now, when we’re all gone and there are nine new justices on the court, only the words of this decision will remain. Perhaps a historical parallel from a century ago will help us better grasp the civics lesson in these words.

The most striking parallel in our history involved a constitutional action taken and then undone. But this one was done the right way—a way open to abortion opponents like me as well as to abortion advocates.

Early in the 20th century, the progressive movement pushed for and won approval of four constitutional amendments. It was a remarkable political achievement, whether you agree with the substance or not. By comparison, it took just three constitutional amendments to purge the “original sin” of slavery from this same Constitution.

Those four amendments instituted the federal income tax, the direct election of U.S. senators (previously state legislatures selected senators to help preserve states’ rights), the vote for all adult women, and a ban on alcohol consumption.

The last one, which we call Prohibition, because it prohibited the manufacture, transportation or consumption of alcohol nationwide, was approved in January 1919. Perhaps it is fair to argue it is the only constitutional amendment to address a social issue at a distinctly personal level, one with both individual and societal impact, with both moral and medical dimensions.

The progressives, to their credit, passed the language through Congress and then won ratification by the required three-fourths of our state legislatures.

But this amendment is the only one among the 27 approved during our 230-plus-year constitutional history to be repealed. The process was reversed and Prohibition was repealed in 1933 by a new amendment.

Significantly, and to underscore what the abortion ruling does, the power to regulate alcohol was then formally rooted in the states. Some states continued Prohibition for a time; all states had to create new laws to take on this now-clarified responsibility.

Sound familiar? A constitutional action by the national government, which never met with broad public acceptance, is overturned. The solution? Return it to the states.

Such patience and persistence, which were hallmarks of the pro-life movement over the past 50 years, require fathoming such supreme civics lessons.•


Smith is chairman of the Indiana Family Institute and author of “Deicide: Why Eliminating The Deity is Destroying America.”

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4 thoughts on “Curt Smith: The court’s abortion decision is a civics lesson

  1. The court’s logic was garbage. By their own logic, access to contraception, same sex relationships, and interracial marriage should also be returned to the states. The justices tried to cut people off to that by saying “well, no, this only applies when it comes to abortion” but that also doesn’t make sense. You can’t selectively apply civics lessons and precedence.

    That’s why originalism is so much garbage.

    Then again, maybe we should send everything back to the states, so people get fed up by heartless Republicans so they can get voted into oblivion and new federal laws can be passed. Because, as we all know, Republicans are big advocates of the rule of law.

  2. I always tune out when the libs combine abortion and inter-racial marriage marriage. Like combining mince meat pie and strawberry smoothy. Just doesn’t make any sense.

    1. I always tune out when people clearly don’t understand the point but comment anyway.

      Central to Alito’s decision was that abortion was illegal when the 14th Amendment passed, so it’s not protected by the due process clause now. Rights recognized by the due process clause must be “deeply rooted in this nation’s history and implicit in the concept of ordered liberty”, his own words.

      For reference, recent hot topics protected by the due process clause include abortion, same sex marriage, access to contraception, and interracial marriage. Justice Thomas said that all of those save interracial marriage “were demonstrably erroneous decisions.”

      So, two things. First, that Thomas thinks that the right he enjoys wasn’t erroneous legally while the others were makes me question if he’s more senile than Trump and Biden combined. Because, Roe was 1973. Loving vs. Virginia (interracial marriage) was 1967. Six years is the same amount of time.

      Second, abortion WAS legal in the country, and was legal for a longer period of time than it was illegal before the 14th amendment was passed. No state had banned the procedure until 1821, and it was legal in 13 of 33 states in 1860. So, not exactly universally banned or deeply rooted.