If Kavanaugh Is Confirmed and Roe v. Wade Is Overturned…

We the People. Not, "We the Judges."

Since my last blog and the subsequent appointment of Judge Brett Kavanaugh to replace retiring Supreme Court Justice Anthony Kennedy, several friends have expressed serious concerns to me about the possibility of cases like Roe v. Wade and Obergefell v. Hodges being overturned. Democrats and the media are feeding fears with their frenzied reactions and vacuous analysis.

I’ll try to clear the air here.

Let me first say this about Judge Kavanaugh. I have not reviewed any of his decisions, so I cannot speak to the quality of his reasoning. However, based on his education, professional experience and the fact so many of those who know and have worked with him seem universally to laud him, he appears to be a fine choice and highly qualified for the Supreme Court. There is even some thought Justice Kennedy specifically approved of Kavanaugh as his replacement during the meeting with President Trump when he announced his retirement.

Even if his qualifications were not as stellar, I believe elections have consequences and the president gets to name Supreme Court justices. I have never opposed any president’s SCOTUS nominee or suggested one should be opposed. The Senate is to advise and consent, not obstruct and deny, except in extremely unusual circumstances. When Democratic presidents appointed Justices Ginsberg, Breyer, Sotomayor and Kagan, I never suggested Republicans should vote against any of them even though I disagreed profoundly with some of their philosophies. They were all eminently qualified to serve. And they all ended up garnering significant support and favorable votes from GOP senators.

This is why I find the Left’s apoplectic caterwauling over the Kavanaugh nomination so odious. You lost the election because you ran a lousy, vision-less candidate whose best arguments for being elected were (a) it was time for a woman, (b) she was a woman, and (c) it was her turn. Now, instead of accepting the consequences of the election, and approving an eminently qualified jurist, many prominent politicians on the Left are going so far as to accuse Kavanaugh of wanting to strip people of health care to threatening the lives of millions of Americans. And other leftist figures and media stars have even claimed he will end abortion, same-sex marriage, and even birth control. As comedian Lewis Black warned about the coming millennium change, “Don’t go out! We don’t know what will happen! There could be giant ticks everywhere!”

The Left’s fear-mongering is beyond hyperbole to the point of absurdity and patent falsehood.

Why? Because even if Kavanaugh becomes a reliable “original intent” conservative justice, and votes to overturn precedents that were extra-constitutional when decided, the results will be much more restrained. And ultimately the power will be returned to the people and their elected representatives—where most of this power should be held.

Let’s start with Roe v. Wade. I have written previously on what a terrible and poorly reasoned legal decision Roe is. I believe Roe should be overturned because it is bad law and was an unconstitutional exercise of judicial power. So, if Kavanaugh is approved, and the Supreme Court ultimately overturns Roe, I will be satisfied knowing a blatantly activist, poorly reasoned, results-oriented decision is excised from our nation’s jurisprudence.

But what will happen then? If you listen to the Left, you’ll believe the moment the last keystroke of the overturning decision occurs, pregnant women will be proceeding en masse to the darkest, dirtiest alleys, rusty coat hangers in hand, prepared to risk their lives to forcibly abort their babies. All because of the Nazi-like GOP and Kavanaugh, the judicial love child of Josef Mengele, Kermit Gosnell and the Grand Wizard of the Klan.

The truth is abortion will not be instantly outlawed nationwide or immediately harder to get if Roe is overturned. Instead, the right to abortion will no longer be recognized as a right that rises to federal constitutional magnitude. The issue of abortion regulation will be returned to the states.

Here’s the open secret the Left doesn’t want you to consider: every state already has their own abortion laws and regulations. Some have more restrictions than others. But that’s the case with laws and regulations in many other aspects of life and government. If your state permits women to abort pregnancies—and all of them do—then your state will continue to make abortion available under its laws and subject to whatever restrictions your legislature put in place.

Now, you may think that’s a terrible idea since you believe women should have a federally recognized constitutional “right to choose.” The problem is the only way you can “find” this right in the Constitution is to use tortured, activist analysis similar to what Justice Harry Blackmun used when he authored the majority decision in Roe and discovered (Eureka!) a right to abortion really existed all along—we just couldn’t see it before the enlightenment of 1970s America.

Your concern (fear) might extend to the possibility that one or more states could outlaw abortion through legislation. Yes, this would be a possibility. It is also possible that states would move to ensure a woman’s “right to choose” to abort her baby remains inviolate. They might even amend their state constitutions to guarantee this right. Others still may maintain their status quo or alter things slightly one direction or the other.

Abortion is complicated because it is an act that affects more than just the pregnant woman. There is the father, other family members and, of course, the baby. Society, too, has important interests in future generations. There are also profound religious and spiritual implications. The Declaration of Independence (which does not have any current legal effect) and the Constitution (which does, or at least should) both mention the same two rights—“life” and “liberty”—as two foundational rights. Like it or not, the decision to terminate a pregnancy deprives the baby both rights in addition to rights other family members may have to help raise and have relationship with the baby. Balancing all these rights is critical.

Perhaps the “right to privacy” with more specific rights including the “right to abortion” should be in the Constitution. After all, society has changed a bit since the 1700s. People today accept a generally broad right to privacy and never in history has the government’s ability to violate our privacy rights been so prodigious.

I personally find abortion morally repugnant and deeply contrary to my belief in Jesus Christ, so I would never support an amendment to constitutionalize abortion. But that doesn’t mean I think abortion supporters should be prevented from having their position and arguments heard and weighed in the court of public opinion. I think the argument for elevating new rights to the level of constitutional magnitude can be made for all kinds of issues. But the arguments must—MUST—be made through the process set up by the Founding Fathers in the Constitution itself: the amendment process.

Now, amending the Constitution is undeniably challenging. Two-thirds of the US House of Representatives and the Senate must agree to a proposed amendment, which must then be approved by three-fourths (38) of the state legislatures. The Constitution has been amended 27 times on 18 different occasions (the ten amendments making up the Bill of Rights constituting one occasion), including most recently in the early 1990s. A small number? Yes, but that’s good. It takes a lot of effort to persuade the bulk of American society to support changing the document that forms the foundation of our republic. And it should.

This is why the Left has chosen to use the courts as their super-legislature. The amendment process, and legislative processes set up in the Constitution and in each state are too slow, too cumbersome, too uncertain to ensure the Left’s agenda is adopted into law. It’s faster, easier and more certain to use test cases, file suit in courts where only one sympathetic judge who believes part of his/her role is to rule based on popular or personal beliefs or perceived cultural shifts needs to be convinced. It has worked many times and courts have frequently amended the Constitution through slim 5-4 Supreme Court majorities in cases like Griswold v. Connecticut, Roe, Lawrence v. Texas, the 2003 case that constitutionalized homosexual sodomy (which, by the way, overturned an earlier case, i.e. precedent, which the Left loves to claim is sacrosanct), and Obergefell v. Hodges, the 2015 decision constitutionalizing gay marriage. Let’s deal with these issues as examples.

On Roe and abortion, when all the issues and relative rights and responsibilities are considered, perhaps the most reasonable and compelling argument is that a pregnant woman should have the ultimate, exclusive and constitutional right to decide whether to terminate her pregnancy. That is a case that can be made. If made persuasively, then proponents can use the amendment process to include this explicit right in the Constitution. If they are not persuasive, then it must mean society on the whole does not believe the right of a woman to terminate her pregnancy is superior to the other rights involved in this complicated issue.

A failed amendment to guarantee a right to abortion would not ipso facto lead to the “outlawing” of all abortions in all states. It would merely make abortion subject to greater state regulation. As I noted earlier, some states may choose to outlaw abortion, others may legalize it without restriction, or regulate it somewhere in between. More liberal states might guarantee abortion rights through amendments to their state constitutions, or even subsidize abortions using state tax dollars. Even if some states outlawed abortion, women could still obtain abortions in other states that keep it legal. Could this be a hardship for some women? Yes, but again, until and unless the US Constitution is amended through the explicitly established process to do so, the place to address this is in the individual state legislatures, not from the bench.

Let’s look at some of the other issues. Griswold is the case notorious for finding (i.e. implying) a “right to privacy” in the Constitution based on other enumerated rights. The case generally involved privacy, and specifically involved the use of contraceptives. Some have suggested Griswold will be on the “chopping block” with Kavanaugh on the SCOTUS, and presumably birth control outlawed. More absurdist hyperbole.

Even if Kavanaugh got his hands on Griswold and overturned it, leaving the issue of contraception to states to regulate, how likely is it that any state would completely outlaw birth control? States already regulate the types and dispensing of pharmaceutical contraceptives. And you can get condoms from any mini-mart and drug store. Perhaps state legislatures would regulate or restrict contraception use to a greater degree. Or a lesser degree. Several states, including California and Florida, already have amendments to their state constitutions explicitly recognizing a “right to privacy.” Maybe laws that outlaw or otherwise restrict contraceptive materials are foolish, wrong-headed or relics of our Puritanical past. Regardless, these decisions are for the legislative process. If using birth control should be a federally guaranteed constitutional right, work to amend the Constitution through the process explicitly provided—a process I suspect would likely be successful on this issue.

Lawrence presents the same challenges its parent Griswold does—most “right to privacy” cases rooted in Griswold do. Unfortunately, Lawrence does not just express an opinion on the efficacy of anti-sodomy laws. Instead, the 5-4 majority in Lawrence determined that the US Constitution actually guarantees the right to engage in sodomy. Trust me, you won’t find this right in the text of the Constitution, the Federalist Papers or any other foundational documents. Interestingly, the Georgia police in Lawrence were investigating an alleged domestic violence incident possibly involving a firearm when they forcibly entered Lawrence’s apartment and found him and his partner.

It's questionable whether Lawrence should have been charged even though he was caught violating the law. Maybe laws criminalizing consensual sodomy between adults are silly, virtually unenforceable and should be relegated to the ash heap. Does anyone think it’s wise to expend limited and precious public law enforcement resources on the investigation, arrest and prosecution of adults privately engaging in consensual sodomy? Probably not. But, that is a determination best made at the state legislative level. Otherwise, the amendment process, not the court system, is the proper—and should be only—vehicle available to elevate the right to engage in this activity to constitutional magnitude.

Obergefell, as I discussed in my earlier blog post, and which raised gay marriage to the level of a federal constitutional right, was an obviously activist and overreaching decision. At the time of Obergefell, Many states hadn’t legalized gay marriage yet. Some had actually considered the issue and voted not to make gay marriage the equivalent of heterosexual marriage. But 36 states had already issued some marriage licenses to gay couples, as had the District of Columbia and Guam. For the most part, public (and legislative) opinion was shifting toward approving gay marriage to some degree around the nation. Despite this shift, the Supreme Court stepped in to shove the movement forward in the most extreme way—just constitutionalize it and bypass the popular will of the people. After all, untrustworthy people in a few backwards states won’t change their ways unless a majority of black-robed super-legislators champion the opinions of people in more progressive states who “get it”.

Justice Antonin Scalia starts his dissent in Obergefell with a simple but brilliant summary of the problem presented by such cases and the use of the courts as a super-legislature:

“The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance. Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create ‘liberties’ that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”

Justice Clarence Thomas added in his dissent in Obergefell:

“As a general matter, when the States act through their representative governments or by popular vote, the liberty of their residents is fully vindicated. This is no less true when some residents disagree with the result; indeed, it seems difficult to imagine any law on which all residents of a State would agree. What matters is that the process established by those who created the society has been honored. That process has been honored here. The definition of marriage has been the subject of heated debate in the States. Legislatures have repeatedly taken up the matter on behalf of the People, and 35 States have put the question to the People themselves. In 32 of those 35 States, the People have opted to retain the traditional definition of marriage. That petitioners disagree with the result of that process does not make it any less legitimate. Their civil liberty has been vindicated.”

So, what will really happen if Kavanaugh is permitted to take Kennedy’s seat?

Will Kavanaugh be a solid conservative justice? Or is he the Swamp choice who will side with the “deep state” as some conservatives warn. Will he become a “swing” vote like Kennedy was? Or will he confirm the Left’s fear and reliably join other originalist jurists like Thomas, Alito and Gorsuch. Will he be the deciding vote to overturn Roe, Obergefell and Lawrence as he gores as many Leftist oxen he can find?

Who knows?

Two things are undeniable: (1) Kavanaugh is eminently qualified, and (2) there is little the Left can do to stop his confirmation.

Even if the Left’s worst nightmares come true, the terrors of their hyperbolic screeching and threadbare chants morphing into the dystopian reality they dread, the integrity of the Constitution and the rights of the people to govern themselves will be restored.

A related consequence will be that the Left will lose much of its power to use the court system as its favorite way to make or change law. Guess they’ll have to go back to persuading people the old-fashioned way.

Power to the people. The Left always told us it was a good thing.

How ironic that this same Left opposes it on the key issues of the day.