THE FREAKAZOID COALITION FOR CHOICE.

For the past fifty years, Roe v. Wade and its emanations and penumbras has been the law of the land, and the strongest case for it being a bad decision is the way it crowds out everything else in Supreme Court confirmations and presidential politics.  How much attention does the excessive police power of civil asset forfeiture or transportation security theater get?  Nowhere near enough, as far as I'm concerned.  There might be mention of these topics in the party platforms adopted at the nominating conventions, for all the attention anybody pays to them.  But say the wrong thing about that right to choose, and watch the sparks fly.

I don't post much about abortion politics.  That's my choice.  Perhaps the mini-dissertation that follows below the jump will suffice for the next twenty years.

What, exactly, is the choice the defenders of Roe are defending?  Laura Hollis takes a caustic view of it.

In many respects, the legalization of abortion was an inevitable consequence of the sexualization of American culture that began in the 1960s. Abortion is a pressure relief valve for a culture that promotes irresponsible sex 24/7/365. In other words, it isn't just abortion that its advocates are afraid of losing; it's the sexual license that drives so much of the demand for it. That might be less insidious if it were just "consenting adults" who were implicated. But it isn't. The same people hollering about their "rights" to abortion insist that they have the right to tell your children what to think about sex and sexuality. And gender. And pornography. And abortion.

That takes me back to college days, when abortion activism was all the rage,  I couldn't shake the impression that some of the talk of "control my body" and "right to choose" wasn't to have a backstop plan when the free love turned out not to be so free.

Put simply, more bourgeois convention, fewer hookups gone wrong.  But that has long been the dirty little secret of abortion rights.  "They don't care about reproductive rights or women's rights in general. They want easy access to you for sex without consequence."  Yes, that's all people dunking on each other on Twitter, as aggregated by Twitchy, and yet, for each advocate of easier access to abortion on behalf of rape, incest, the life of the mother, Tay-Sachs, Down syndrome, or some other High-Sounding Cause there was somewhere in the neighborhood of one advocate who was into "do your own thing" or "smash monogamy" or any of the other Trendy Causes of the era.

I'm not sure what the status of Tay-Sachs is these days. Downs babies have become unwitting mascots in the culture wars.  I suspect that if medical science ever comes up with a genetic marker for homosexuality or gender dysphoria, you'll see a very quick shift on the part of some of the more vocally pro-abortion members of the freakazoid coalition.  (We'll get to the legal, rather than out of countercultural solidarity, basis for that coalition anon.)

There was also an environmentalist angle, it being edgy back before Roe codified what health practitioners could and could not offer to bundle abortion referrals with contraception and zero population growth.  Do your own thing, man, but don't leave any spawn to posterity.  Ms Hollis concludes, "Overturning Roe is a start. But if we truly want to reclaim our liberties and reduce the numbers of abortions, we should focus on healing our culture and undoing the damage wrought by the sexual revolution."  Perhaps.  That, though, will be on Normals to demonstrate the evolutionary advantage of their norms.

She's the moderate in that skirmish.  Tom Knighton brings the smack.

Frankly, if someone is literally too stupid to figure out that prevention of pregnancy is still an option, I’m not sure I want them raising a child anyway.

But it’s not “government-mandated pregnancy” since the pregnancy is typically the result of a willful action by both the woman and the man she had intercourse with. It’s not mandating pregnancy, it’s mandating personal responsibility.

And frankly, Democrats need to stop being so damn dishonest about what it is.

It's apparently "blaming the victim to ask, in the manner of Pastor Inqvist, "If you didn't want to go to Minneapolis, why did you get on the train?"

Why, though, does the rest of the freakazoid coalition rage so? "It’s not just married couples of differing hue that should be rending their garments, but pity the poor hook-up culture."  Yes, and apparently same-sex marriages, and mixed race adoptions, and for all I know, Packer fans shacking up with Bear fans.  It's gotten so that pot-bellied dictator J. B. Pritzker and failed Chicago mayor Lori Lightfoot would like to make Illinois generally, and Chicago particularly, safe spaces for abortion.  As if turning Illinois into an abortion sanctuary state will offset all the losses of productive people thanks to high taxes and corruption, or if explicitly bundling soft-on-crime, wilding and wokeness more explicitly with easy access to abortion will do anything either to bring more people to Chicago or disabuse people of the notion that easy abortion is part of the same degenerate Democrat bundle with softness on crime, debauched currency, corona tyranny, and critical studies in kindergarten.  Or that Illinois as an abortion safe space somehow compensates for Illinois being a tax hell.

Note that both of those pathetic Illinois politicians see a slippery slope at work.  Here is the governor.

Democratic Gov. J.B. Pritzker on Tuesday vowed the state would remain a “beacon of hope in an increasingly dark world” — a day after an explosive leak revealed the U.S. Supreme Court may be preparing to overturn Roe v. Wade.

The draft opinion written by Justice Samuel Alito, and obtained by Politico, would overturn the landmark case that upheld the constitutional right to abortion for nearly half a century.

Pritzker also voiced his anger at Republicans, warning that if the abortion rights case is overturned, the Supreme Court may target other rights, such as marriage equality and civil rights for marginalized and minority communities.

The mayor is similarly overwrought.

Lightfoot also declared that Chicago would be an “island of reproductive freedom,” a kind of “safe haven” in the Midwest amidst a hostile sea of deep red Republican states.

Lightfoot also vowed that Chicago would remain a steadfast redoubt against the revocation of a whole host of “rights” that Democrats now claim are under assault by Republicans.

“This includes women’s rights,” she said in her speech, “trans rights, immigrant rights, and of course, the right to same-sex and interracial marriage. We simply cannot stand idly by and let that happen.”

Some of her terminology provoked Colorado representative Lauren Boebert. Those two deserve each other.  The slippery slope argument, though, has some purchase among the Democrats.  Valley Girl Kamala Harris, when she aspired to the presidency, also raised the spectre of Republicans reversing all those Democrat gains of years past.

To the misguided revolutionaries, though, that bundle is the outcome to be desired.  "I can think of few things that will alienate moderate voters than shrieking leftists disrupting church services."  At the margin, it's unlikely that calling attention to your enthusiasm for the rest of that degenerate bundle is likely to win over people who might prefer that abortion policy be left well enough alone.  That's long been my stance.

The Democrats have discovered their policies and intentions are failing to motivate voters who view a breakdown in morals as an important policy issue. That failure to motivate strikes some observers as strange, as many such voters would -- in the view of those observers -- benefit from traditional Democratic economic policies, themselves steeped in the Social Gospel.

I'm withholding judgement on the effect of Roe being modified on the election, because the Democrats' policy bundle has a lot that is lousy in it.  "Let's see how this outrage over abortion policy plays out, are there sufficiently many people put off by soft on crime policies, inflation, and corona tyranny who will still return the politicians who support abortion under most circumstances to office?"  Think about it, dear reader, a company that makes nuclear capable bombers finds Chicago to be an unsafe space.  The freakshow party has a lot to defend, if pragmatic populists play their cards properly.  Don't take that for granted.

Speaking of past victories, in 1994 GOPs made a huge deal about how the Contract with America skirted any mention of abortion. This was presented as one of the reasons it was so effective in the midterms. In 2010 the Tea Party largely downplayed abortion rhetoric. This was presented as one of the reasons it was so effective in the midterms.

It's still a tall order for the Democrats, deflecting to Roe in the face of everything else they have gotten wrong.

Biden’s dire economic predicament explains why Dems are latching onto the imminent Supreme Court ruling that will likely overrule Roe v. Wade. The White House and Senate Democrats are trying to gin up the anger machine and are supporting the crowds gathering outside some of the justices’ houses.

They’re playing with fire, and their willingness to risk violence shows how desperate party leaders are to motivate voters. My guess is that they will fail to reshape the political climate because, for most families, even the heated topic of abortion is less important than the double gut punch of inflation and a recession.

Why, though, does the freakazoid coalition rage about that slippery slope? It stems from a possible Ninth Amendment argument for protecting rights not explicitly provided for elsewhere in the Federal Constitution.

Many of our most cherished constitutional rights are only impliedly contained within the expansive, conceptual language of the Constitution. As Justice Marshall reminded the Court over 200 years ago, "we must never forget that it is a Constitution we are expounding."

So why does it matter to other constitutional rights that Alito doesn't think individual liberty includes the right to decide whether to have an abortion? Because the liberty interest protected by the Due Process Clause and the right to privacy it encompasses are also the bases for the Court's protection of gay marriage, the right to contraception, the right to private consensual sex, and the right to interracial marriage.

The leaked ruling would only allow a Mississippi law (which people who pay closer attention to this stuff than I do sauggest is still less restrictive than Germany's) to stand. It does not prohibit all abortions. Nor do I see any evidence that Weimar America have to fear an upsurge of new sodomy or miscegenation laws.  But then I'm just a guy with a weblog.  David French has a law degree.

[Associate Justice Samuel] Alito argues that abortion is dramatically different from cases involving marriage, because abortion involves harm to a non-consenting party, the “potential life” (to use the language from Roe) of the unborn child. Interracial marriage involves consenting adults. So does gay marriage. A person consents to using contraception. Prior cases protect consensual adult sexual activity.

Beyond this language, however, there’s another reason to believe that Dobbs does not undermine Obergefell—Alito’s view of “reliance” within the doctrine of stare decisis is a legal term referring to the weight the justices grant precedent. While the Supreme Court can overrule any of its prior cases, the principles of stare decisis urge restraint. Otherwise, legal doctrines would be too unstable and unpredictable for a rule of law–based society.

On the other hand, the instability and unpredictability of High Bench nominations and presidential politics under Roe suggest it might be time for that precedent to go, with proper respect to some niggling details.  Particularly as Roe was not well done.

"For the stage prior to approximately the end of the first trimester," [Associate Justice Harry] Blackmun said, "the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician." After that, "the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health." Finally, "for the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother."

Those rules, which were somehow inferred from a "right to privacy" of unclear provenance and breadth, effectively invalidated every abortion law in the country. The result, Roe's critics say, was decades of acrimony provoked by the lawless nationalization of abortion policy. Even supporters of abortion rights have argued that much of that anger could have been avoided if the Court had treaded more carefully.

Scott Morefield is one of the people paying attention to the niggling details.

On the most extreme right (I’m using “extreme” in the pure sense of the word, not as a leftist would to tarnish the right), all abortion from conception on is murder, and murderers and those who aid and abed them should be tried and punished the exact same as if they had purposefully shot someone in the street. On the extreme left, abortion-on-demand from conception all the way to birth - and in some cases even after - should be legal and performed without question in every circumstance. To both sides, ironically enough, a fully developed 9-month-old baby who happens to be inside the womb about to be born exists on exactly the same moral plane as a 2-day-old zygote.

To most Americans, however, the issue is much more nuanced. Sadly, there’s no denying that these extremes use the margins to demagogue the issue. Less than 2.5% of abortions are due to rape, incest, or to save the mother's life, and yet those situations are magnified by the left as if they represent a majority of abortions. On the other side, less than 1.5% of abortions occur during the third trimester, and the overwhelming majority - more than 85% - occur in the first, and yet third trimester and partial-birth abortions, as gruesome and morally reprehensible as those are, are magnified by the right as if they are far more commonplace.

While the vast majority of Americans in polling believe abortions should be allowed in cases of rape, incest, and medical necessity (assuming for the sake of argument that those actually exist), a telling majority also don’t believe abortions past 20 weeks should be allowed. Bottom line: The further along a pregnancy goes, the more uncomfortable people tend to be with legally terminating that pregnancy.

Reason's Jacob Sullum concurs.

Last year, 32 percent of respondents said abortion should be "legal under any circumstances." Just 19 percent said abortion should be "illegal in all circumstances." A plurality of 48 percent said abortion should be "legal only under certain circumstances."

Based on those numbers, Wegman is right that "an overwhelming majority of Americans still support a woman's right to terminate her pregnancy in at least some circumstances." But the plurality's view covers a wide range of policies, from liberal laws that allow abortions in nearly all cases to strict laws with just a few narrow exceptions.

Also at Reason, Scott Shackford does a little prognosticating, based on previous rulings.

Alito is noting that those who are defending abortion rights are doing so by turning to more recent precedents because older precedents prior to Roe v. Wade are not helping make their case. That's the context of the Obergefell reference. And he notes that abortion is clearly different from these other rulings because "Abortion destroys what those decisions call 'potential life' and what the law at issue in this case regards as the life of an 'unborn human being.'"

Furthermore, his opinion leans heavily on the fact that Roe v. Wade has failed to actually resolve conflict about abortion, and citizenry, lawmakers, and the courts themselves remain polarized and divided about abortion regulation. The same is not true for gay marriage or LGBT issues in general, current culture-warring notwithstanding. Americans now support gay marriage recognition, while abortion remains as polarizing as ever.

Since the pending decision does not prohibit abortion nationwide, the best thing for advocates of the procedure might be to help people who aren't so blessed as to live in Illinois or California to get there.  "The obstacles created by state bans will impose real, sometimes prohibitive hardships on many women. But given the inevitability of those bans, abortion rights supporters who are venting their rage at the Supreme Court's expected decision would have a bigger impact by focusing their energy and resources on alleviating those hardships."  Where's the fundraising in that?  Perhaps as the polling data comes in, and the woke wing of the Democrats figure out that the inflation, crime, empty shelves, and corona tyranny more than offset any turnout the protection of late term abortions will generate.  James "Long Emergency" Kunstler gets that.  "But let’s get real: places like New York, Massachusetts, Maryland, and California are not going to enact any new anti-abortion laws, and that’s where most of the people having hebephrenic breakdowns over the issue live. Which is to say there’s little danger that the shrieking denizens of these Blue states will lack abortions."  Shrieking harridan Elizabeth "Fauxahontas" Warren, not so much.

It's foolish, all the same, to attempt to codify abortion policy by having one law nationwide.

If we assume that most voters are not anti-abortion fanatics and are persuadable that a complete ban is a bad idea, the first thing that has to be done is simplify the issue. And the first thing to simplify: Nobody is pushing to make elective abortion legal throughout the entire 38-40 weeks of a full-term pregnancy. That absolutely has to be clarified.

In the same way that a national 55 mph speed limit is too fast for Massachusetts and too slow for Wisconsin or Montana, whatever codification emerges will be too restrictive in Weimar America and too generous in Jesusland.  In addition, if such a law is the consequence of a voiding of the legislative filibuster, you know darn well that each time the Senate majority flips with a favorable correlation of forces in the House and the Executive, that codification will change.  Better to leave it up to the individual states, and make nominating conventions and confirmation hearings unpredictably boring.  Wouldn't some pragmatic populism be preferable?

Reason's Liz Wolfe puts that point well.  "For pro-life libertarians who see unborn babies as innocent rights-bearing individuals, even modestly reducing the number of lives ended by abortion brings us closer to our credo that we will not harm nonaggressing beings. It is consistent with a belief that our laws ought to be few in number, carefully crafted to protect individual rights."

We'll turn to the problem of Congress relying on undersecretaries to issue the proper regulations, and appellate judges to rule properly, another day.

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.

That day, though, will come.