The American Spectator: Abortion, Texas, and Roe v. Wade
September 20, 2021

by Rabbi Dov Fischer, The American Spectator

We often forget that American law is a federal system. We have two parallel legal and even Constitutional systems: federal and state. The thirteen colonies — now the “states,” give or take a “commonwealth” or three — having emerged from memories of King George depriving people of their liberties, were very hesitant to give away all their new independent powers and rights to a replacement national government. Therefore, they delegated certain of their rights and powers to the national government for things that needed national harmony and uniformity (e.g., minting a common currency, regulating admiralty law on the seas and contemplating our navals, maintaining peace between and among contending states) while the respective independent states also continued retaining for themselves a wide swath of powers to regulate more localized matters like contracts, crime, property, and torts. That is why crime punishments vary from tougher (Alabama, Texas, Florida) to gentler to almost non-existent (Illinois, California, New York). It also is the reason that people whose key concern is crime are fools when they vote for tough-on-crime conservatives to be their president and congressional representatives while voting for liberals to be their state governors and mayors. When you keep electing Democrats to run California, sweet innocents like Kate Steinle are going to keep getting killed by Illegals in San Francisco’s Sanctuary.

Abortion really is a states’ issue, not a federal concern. Always has been. Never belonged in the federal courts. If seen as murder, then — like all criminal law — it tends to be a state issue. If seen as a health concern, that also classically falls within the states’ domains, to be regulated locally. That is why each state has its own health-insurance system. Californians can’t buy Texas Blue Cross coverage for California health care needs.

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Abortion never should have been in the federal courts. The problem is that the U.S. Senate in the 1970s made filibusters so simple to generate that any bill needs a challenging supermajority of 60 out of 100 votes to pass the U.S. Senate — rather than 51. Consequently, almost nothing even slightly controversial ever can pass the Senate these days because it is rare for the Senate to be split with so lopsided a political imbalance that one side has 60 or more seats while the other barely has 40. Americans, as we have seen in many (but not all) recent elections, tend to be split down the middle, hence the muddle within the model. Inasmuch as tough issues therefore simply cannot get through the U.S. Senate any more, tough legislation cannot be passed on anything anymore.

The permanent legislative impasse has become a year-round Christmas gift for the Democrat Left. Ultimately, liberals hit on their devastating alternate strategy to legislate through the courts, and they successfully have been doing so since the 1960s. Besides, it is American — and human — to “pass the buck” in life. If a congressional representative, elected to legislate — to vote on and to enact laws — votes the wrong way on a controversial new law, the voters might throw him or her out. Think of all the “Blue Dog Democrats” who got kicked out after they voted in favor of Obamacare. So the Democrats — and plenty of cowardly lyin’ Republicans, too — decided they may as well let the judges vote on laws like Obamacare. Nowadays, amid this perversion of the intended tripartite system our Founding Fathers had crafted so much more elegantly, the Left hit on its strategy of letting the judges make the laws while the legislators go to ball games, drink themselves sauced at soirées (or just do like the socialist Ocasio and commission $14,000 dresses and outfits to wear) — and devote working hours to raising money for reelection. Only now is the Left experiencing the first rethinking of the two-branched government they have formed, comprised solely of an (i) executive and (ii) a synthesized judiciary-legislative branch.

The Left is rethinking because, for the first time in anyone’s lifetimes, the Supreme Court finally became a tad conservative, thanks to Trump. As a result, the Left creatively already have begun searching for yet a newer way to legislate surreptitiously while bypassing the filibuster-hamstrung Senate. An approach that has borne them enormous fruit so far is now to legislate by having federal agencies engage in unilateral “rulemaking” under Title V of the United States code, again bypassing Congress while they nurse their drinks in D.C. and doctor others.

Roe v. Wade could have been the ultimate debate over the best way to get across a lake, but it never should have turned abortion into a federal issue. Once the justices agreed to entangle their robes with fetus killing, rather than just to deny certiorari, the Roe Court strayed way outside its proper boundaries. For those of us with legal training, we know the Roe opinion is deeply faulty — even the Left knows they got away with murder — not merely because half the country or more disagree with the end result, but because classic legal principles and analyses were disregarded. It was like the guy who first shoots arrows at the tree and only afterwards paints bull’s-eyes around them. The Roe court fabricated “penumbras of rights” they suddenly discovered in the Ninth Amendment, rights no one ever before had seen there in 200 years. So many Americans have heard of the First Amendment (free speech), Second Amendment (right to bear arms — though you should cover them if too much fat dangles), Fourth Amendment (wiretaps and search warrants), Fifth Amendment (right not to self-incriminate; laws of eminent domain), Sixth Amendment (right to confront witnesses against you), Seventh Amendment (right to jury trial), Eighth Amendment (protection from cruel and unusual punishment), and Tenth Amendment (when to defer to states). No one ever quotes the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Suddenly, it came to life in Roe v. Wade.

Now with half a century of abortion on demand, liberal-“progressive” states like New York, Massachusetts, Illinois, California, and Oregon never are going to ban abortion. Pro-abortion groups like Planned Parenthood always will have oodles of grant money to dole out to the poor and the scammers — typically supplied by the taxpayers — to provide travel stipends to Texans whom the Lone Star state’s new abortion law inconveniences. People travel to abortion states all the time — gladly, of their own volitions — for vacations: to see the Statue of Liberty, to see Disneyland, to walk the Boston Freedom Trail, to watch Saturday night shootings in Chicago. If they want an abortion, they will be able to come for the abortion and stay for the marijuana. Really.

Abortion once was easier to justify to a secular audience by advancing the mixed arguments of (i) “Keep your rules off my body”; (ii) “Stay out of my bedroom”; and (iii) “It’s called an ‘abortion,’ not a ‘murder,’ because the thing is not a human, you idiot.” But the Left likes to lecture humanity to “follow the science,” and Science has advanced this past half-century to the degree that advanced digital imaging, genetic understanding, and modern medical knowledge leave no doubt but that a fetus is a living being with a heart pumping, a brain evolving, and limbs growing. It takes little courage to pronounce with honesty that abortion is killing a life. You idiot.

There remain issues for contemplation. If an honest medical team determines that a pregnant woman stands a serious possibility of dying if she carries to term, how can we fairly say that the unborn fetus’s life is more precious and valuable than that of the living mother? If an honest medical team determines that a woman whose pregnancy stems from a brutal rape will not be able to maintain emotional, psychological, mental equilibrium if she is coerced into carrying “in her belly” for the next nine months a reminder of that rape, who really has the right to pooh-pooh and say “It was only a rape”? So there always will remain profound issues for doctors, ethicists, theologians, and others in related areas to weigh in highly outlier cases. And, just as Bogie and Bergman knew they would always have Paris, so it is that aborters will always have New York and California and Illinois and Massachusetts and Oregon and . . .

A righteous society must distinguish itself from Sodom and ‘Amorah [Gomorrah] by enacting iron-clad laws to protect life. A truly righteous society therefore executes premeditated murderers and does not wait for the Sirhan Sirhans to outlast the memories of the Robert Kennedys who may not have deserved the presidency but who surely deserved to live long and ripely, pursuing happiness with liberty. Fetuses are the least able to set forth their argument for the chance to breathe outside the womb, and they deserve society’s deepest imaginable protections. There needs to be a moral voice of conscience in our righteous land that acknowledges — in the face of irrefutable Science — that aborters are not simply vacuuming out detritus but are snuffing out life. Say the Name: Killing. There needs to be a voice of morality here affirming that, when two people feel just-too-exhausted and are plain-old-too-lazy to get up from the bed and attend timely to what must be — inserting a diaphragm, applying some spermicidal jelly, affixing a condom, swallowing a pill, having an IUD in place —abortion never ever is an acceptable alternative to responsible birth control. It is an act of killing.

Of course we have a right to our bodies, but all rights are circumscribed by common sense. Although the Torah forbids tattoos, our secular society imposes no bar on a person tattooing her arms, legs, torso, and face with so much ink that she reads like her favorite book — with pictures. The thing about abortion, though, is that conflicting rights are in competition here: the woman’s right to her body versus the child’s right to life. The woman enjoys the advantage of an enormous head start: birth control, abstinence, even the morning after. Only after the woman has proven utterly incompetent and irresponsible in taking the most basic precautions does the fetus get a veto.

The grand paradox of the abortion-on-demand debate is that, if conservatives only would have gotten their way:

    1. Abortion would have been substantially restricted this past half-century.
    2. More than 20 million Black fetuses that have been killed by White progressives during that time now would be alive.
    3. With Blacks voting 90 percent Democrat-liberal in an election map that is closely split without those 20 million killed Blacks in the electorate, Republican conservatives would have lost every close national election and would be unelectable nationally ever again. If there had been even 10 million more Black votes in play (since many of the post-Roe aborted would be over 18 by now), the GOP would have been finished forevermore in national elections.

    Crazy. The pro-abortion Left has saved America’s Republican conservatives by killing off 20 million Blacks. Properly and rightly, conservatives should be working on winning Black Americans over with the powers of reason and persuasion rather than simply sitting back and watching liberals and “progressives” kill them out by the tens of millions. The former is a Torah approach and an American approach. The latter is for Ocasio, Omar, Tlaib, The Squad, and the Biden-Pelosi Catholics who defy the faith they espouse every day. Twenty million dead Black fetuses denied the right to live the same lives that their White Democrat killers enjoy. Crazy.

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