The American Spectator: Why No One on Either Side Will Miss Roe v. Wade
January 23, 2022

by Rabbi Dov Fischer, The American Spectator

The U.S. Supreme Court may be issuing a holding very soon on the continued application of Roe v. Wade. That opinion likely will be overturned either explicitly or by implication. Good.

Democrats and Leftists of all sorts now are in a tizzy. As with most public policy arguments that explode in our era of social media, peppered by nonstop lies belched by fabricators ranging from Nancy Pelosi and Charles Schumer to Adam Schiff and Elizabeth Warren, the entire public discourse is obfuscated by phony, fluffy, and false “facts,” arcane arguments, and mainstream media mendacious meddling. Add to that the harassment that sees the Woke following Kyrsten Sinema to the toilet when it is they who should be evacuated. Let us instead welcome clarity:

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  1. In General, Legal Precedent Should Not Be Overturned.

Under Western society’s principle of stare decisis, legal precedent is respected even when a bit dubious. People need to wake up each morning knowing the laws governing their lives. It cannot be that on Monday we cross at the red and wait at the green, and on Tuesday they change the colors to magenta and chartreuse. We need general ideas of what is lawful, unlawful, what may be deducted from income in tax filings, the obligations for maintaining our properties. Those in doubt often seek advice from their attorneys and accountants, and those professionals also need to know that the rules bear consistency. A society cannot willy-nilly change its laws every Monday and Thursday to accord with the days I publish on these pages.

  1. Sometimes, Though, It Is Desirable to Overturn Bad Law.

Rules are made to be broken. Some laws need to be changed. In Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), the U.S. Supreme Court essentially ensconced slavery with the imprimatur of the nation’s highest court in shockingly racist language. That had to be changed. InPlessy v. Ferguson, 163 U.S. 537 (1896), the Court upheld the principle that laws could govern the races as long as they assured “separate but equal” treatment. That also had to change, as it did when Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), was handed down. Now it is only the Woke who press for Blacks to have separate cafeteria and dormitory facilities at colleges. These are two of the most famous overturned Supreme Court decisions. There have been many others.

In Abood v. Detroit Board of Education, 431 U.S. 209 (1977), the Court held that public school teachers could be forced to pay union dues. That was overturned in Janus v. American Federation of State, County, and Municipal Employees, 585 U.S. ___ (2018). In Lochner v. New York, 198 U.S. 45 (1905), the Court allowed bakery employers to demand more than 60 hours weekly from their workers under the “freedom to contract.” The Court later reversed itself in West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), finding that legislatures enjoy discretion to regulate work hours to protect health and safety. In Bowers v. Hardwick, 478 U.S. 186 (1986), the Supreme Court upheld Georgia anti-sodomy law that forbade oral or anal intimate contact. That precedent turned on its rear in Lawrence v. Texas, 539 U.S. 558 (2003). Interracial marriage was banned by the Court in Pace v. State of Alabama, 106 U.S. 583 (1883). The Court changed its pace in Loving v. Virginia, 388 U.S. 1 (1967).

In Austin v. Michigan State Chamber of Commerce, 494 U.S. 652 (1990), the Court upheld state laws restricting corporate donations to political campaigns. That decision was overturned in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). In Whitney v. California, 274 U.S. 357 (1927), the Court upheld restrictions on speech “tending to incite crime, disturb the public peace, or endanger the foundations of organized government and threaten its overthrow.” Whitney was overturned in Brandenburg v. Ohio, 395 U.S. 444 (1969), which set a tougher bar banning speech only when it threatened “imminent lawless action.” In Betts v. Brady, 316 U.S. 455 (1942), the Court held that indigent defendants did not have some kind of Constitutional right to counsel; that was overturned by Gideon v. Wainwright, 372 U.S. 335 (1963), which found such rights in the Fifth and Sixth Amendments. See here for a list of 130 Supreme Court decisions that the Court has overturned. These judicial reversals have spanned the full gamut from admiralty law, criminal law, and antitrust law to due process law, free speech law, and federal tax law.

  1. The Democrats and Other Woke Never Hesitate to Try Overturning Settled Law and Rules.

As recently as now, the Democrats and their mainstream media wing have been on “red alert” to overthrow the Senate filibuster rule that has existed in its present form foralmost half a century since 1975 and that they themselves used so often to thwart President Trump’s legislative initiatives. They also would pack the Supreme Court beyond the nine justices who have ruled the bench for more than a century and a half, dating to the Judiciary Act of 1869. They have made a shamble of immigration law on the books, likewise refusing to abide by the Constitution’s Supremacy Clause and instead going rogue by following their own ad hoc “sanctuary city/sanctuary state” corruptions.

  1. Any Court Would Overturn a Prior Ruling When the “Accepted Science” Has Changed.

Imagine a class action suit before the Supreme Court, during an era when people understood the earth to be flat, brought by sailors asking for legal protection in employment from those who force them to sail to the farthest east or west. The Supreme Court, if in a Lochnermood, might have ruled that the matter is internally contractual and outside the court’s scope, or they might have ruled that such certain-death requirements violate the conscience and public policy. Regardless, the science changed as Copernicus and Galileo helped determine that the earth is oval. In time, a cruise line might come before the Court and seek to overturn the landmark precedential case. The Court easily would throw out its prior holding on grounds that the “science” has changed.

Roe v. Wade, 410 U.S. 113 (1973), was decided half a century ago. The “science” then did not advance to where it is today. We now have ultrasound advances and so many other medical and technological breakthroughs that we now know that a fetus is living by its fifteenth week. (For 2,000 years, by the way, Talmudic Judaism has taught that the soul enters the fetus at its fortieth day. If counting from the time of mikveh immersion, that could be as long as 54 days or just about eight weeks. Compare Sanhedrin 91bwith Menachot 99b. See also Yevamot 69b and Nidah 8b. Under all such understandings, which do not define American law but afford comparative wisdom, the fetus is a life form even before the fifteenth week.)

While ultrasound images once were static and black and white, now we have 3D, 4D, and real-time images. As early as 15 weeks, doctors now can see whether the fetus favors its right or left. Physicians can see the fetal heartbeat by six weeks, observe baby movements, evaluate the anatomy, and determine fetal gender earlier than could be done before. Fetuses may feel pain from as early as twelve weeks’ gestation and definitely by eighteen weeks. We did not know this in 1973. The science has changed discernibly and dramatically. It therefore is consistent with standard jurisprudence to overturn Roe v. Wade now.

  1. Roe v. Wade and Abortion Law Never Should Have Been Converted From a State Matter to Federal Law.

The United States system of governance is based on “federalism.” The original thirteen colonies had experienced tyranny under King George III, and they zealously sought protection from any future sovereign again restricting their freedoms. In time, they came to see that certain rights had to be delegated to a federal government: for example, authorizing uniform printing of currency, maritime law, war and peace on foreign matters, regulating trade between and among the independent states. On the other hand, they zealously reserved to themselves most other areas of regulation: business contracts, tort law governing social rights and wrongs as between and among neighbors, property and realty law, criminal law. That is why Texas and Florida punish crime more vigorously than do New York, Massachusetts, and today’s California. It is the reason that sophisticated attorneys sometimes bring lawsuits to Louisiana to litigate insurance bad-faith claims or why a disproportionate number of businesses incorporate in Delaware.

Abortion law has no federal basis. To the degree it governs killing and murder, it falls under criminal law, a state concern. If it is about parental rights, those are state matters, just as are marriage licenses and differing state standards governing divorce, wills, alimony, and related family law matters. Roe v. Wade never was susceptible to federal governance and never belonged in the federal courts. All anti-Roe and a huge number of pro-Roe law professors and attorneys acknowledge that it is one of the worst crafted, least honest or law-based opinions ever published. The Supreme Court of 1973 simply decided they would legalize abortion, and they concomitantly concocted a conundrum of “Constitutional” law. They discovered “rights” buried in the Ninth Amendment that no one before ever discerned. They dispensed with basic rules of judicial analysis. By so doing, they formulated a toxin that has festered for 49 years. The matter belonged in the states, its future destination.

  1. Once the States Get Abortion Law Back, Women Will Have Plenty of Abortion Choices.

When Roe is overturned, the Left initially will burst with another tizzy fit. Perhaps Hillary will be able to slosh some Clinton Foundation cash over to Perkins Coie to hire Fetus GPS to pay Christopher Steele to fabricate inside sources to blame abortion and pregnancy on Trump. The Woke will follow Sinema back to the toilet, perhaps even to Flushing, Queens, New York. Ocasio will break down in tears as she did when Congress voted to send defensive missiles to resupply Israel’s Iron Dome protection shield that guards civilian lives. Pelosi will add it to the “January 6 Insurrection” probe, and will subpoena some Republican’s fetus to testify. Schumer will look up a speech he delivered on the Senate floor ten years ago and will stand up and proclaim the diametric opposite. Bernie Sanders will turn back to Marx and Stalin for comfort. Adam Schiff will claim he has proof that Putin paid the justices to vote as they did. Brennan and Clapper will accuse Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett of treason. Chief Justice Roberts will check how he voted last time and will balance this time. Kamala Harris will say “we need to have this conversation” and “I encourage you to speak your truth.” Biden will ask Dr. Jill what the hubbub is all about and whether he needs a mask. Someone will dig up Sandra Fluke to ask for free contraceptives and free toilet paper.

But as soon as the Court throws out Roe as bad law, all rapidly will transition to calm. Those who want abortions will have more choices than ever — spread equidistantly from the east to the Midwest to the south to the west — in Vermont, Massachusetts, New York, Illinois, New Mexico, and California. This is not the 1780s. All Americans now travel across states, even when they do not realize it. Kyle Rittenhouse crossed from Illinois to Wisconsin in less than half an hour. Nick Sandmann and his classmates descended from Covington in Northern Kentucky to D.C., where they were accosted by that Indian drummer who was not honorably discharged from the military. People fly to family all over the country.

Americans regularly visit Disneyland and Hollywood (California); Broadway theater, the Met, and the Twin Towers site (New York), famous filming sites of Breaking Bad (New Mexico), and the Willis (formerly Sears-Roebuck) Tower, John Hancock Center, Art Institute  Museum, and Saturday Night Shooting Galleries of Chicago. After the pandemic, they will be back in Massachusetts to visit the Freedom Trail and the Indian Reservation where Elizabeth Warren was spawned and in Vermont, where carpetbaggers Ben & Jerry occupy native American lands to supply young people with a diet of saturated fats and processed sugars. All these states and locations will offer unlimited abortions, with Planned Parenthood supplementing advertising and subventing costs. Democrats and others among the Woke will be free to practice population control in those centers, reducing the Black population as they always have, and Republican conservatives will watch with fascination.

And the nation will be able to return to debating the best way across a lake: ro[e] v. wade?

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