Critics 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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