Buckle up. America is in for a rough ride if the leaked draft opinion from the Supreme Court regarding abortion turns out to be reflective of the final copy. In the long run, this opinion may end up healing the country, at least to some extent. A morally charged and complicated issue like abortion is best decided in the political arena. Allowing the voters of each state to decide the rules for themselves will not satisfy everyone. It may satisfy almost no one since there will be outlier states on both sides that will impose rules unpopular with the other. But the political system at least allows advocates the opportunity to make their case to their fellow citizens. That opportunity itself has value in a democracy, and that’s America’s best hope for long-term health on the emotional and divisive abortion issue.
In the short term, though, look out. The left and right are both in an angry mood. The left, in particular, is in “burn it down” mode. There are already calls to nuke the filibuster and allow a bare majority of Congress to impose a new abortion law or even to expand the Supreme Court in an effort to overturn this reported decision. The leak of the decision could easily end up being just the first norm-changing result. With liberal or conservative majorities, the Supreme Court has acted, in general, as a refreshingly collegial island isolated from the national storms raging in America. Famously, conservative Justice Antonin Scalia’s best friend on the court was liberal Justice Ruth Bader Ginsburg. In a polarized country where few are even interacting with those they disagree with, this was both unique and commendable. The thought of one of the court’s trusted staffers breaching the confidentiality that has for so long defined their system was inconceivable. Those days are sadly over.
The truth is that Congress has put the court in an awful bind on many issues. Lacking the political courage to write laws that clearly define the rules, Congress often punts on controversial issues with ambiguous rules that force too much discretion to the court. Both parties do this. Some on the court are eager to use this discretion to, in essence, write their own laws. This has placed the court in the national crosshairs from each side. Now, with the latest reported ruling, the temperature will turn up to previously unprecedented levels. As someone who believes the court overstepped on creating fundamental rights where they did not exist in the Constitution, the decision is welcome. As someone worried about the future of this relatively solid (by America 2022 standards, at least) institution, this is a time of great potential danger.
On the election front, many Democrats welcome the court’s reported decision. They were on course for a potentially historic-level shellacking in the coming midterm elections. There’s no guaranteeing that the court’s decision will change that outcome, but anything that shakes up the status quo dynamic is potentially good news for them.
More broadly, abortion is one of, if not the single most emotional and sensitive topics that America wrestles with. To say that the country is not in a healthy place to handle an issue as sensitive as that would be a vast understatement. Too many on the left have decided that the American right is composed of irredeemable deplorables who need to be destroyed. This decision will only exacerbate that view. When you decide that your opponent is not only wrong but evil as well, you are willing to do nearly anything to stop them. America already faced a year of often violent left-wing rioting. Radicals have already called for protests at the justices’ homes and posted their addresses online. Fencing is already going up around the court building. We have to pray that a reprise is not coming, but we should be prepared for that possibility.
Those on the right should handle this moment with humility, calm and compassion. We may disagree with the left on abortion, but this is not a time to dance in the end zone. People have passionate views on the topic that come from a good place. You may think they are wrong, but this is not a time to rub it in.
The best result of all this may be a more federalist system where the rules in deep red states vary greatly from the rules in deep blue states. There are downsides to that, but there are huge downsides to the current system as well. America is already facing record levels of internal migration, often driven by political, cultural, COVID-19 and economic factors. The court’s decision, and the huge differences in state regulatory regimes to follow, will likely accelerate this phenomenon. That’s not ideal, but it’s better than many alternatives.
America has been through many challenges in its history. Recent times have been as highly charged as any since the 1960s, or maybe even the 1860s. Some on the left and the right are openly doubting America’s capacity to continue, given the course we are on. Here’s to hoping they are wrong. For those who care about the country and want to keep us from falling apart, this is a time for cool heads.
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