Not “Settled Law”

Not “Settled Law”


Leonard Zwelling

Brett Kavanaugh assured Senator Susan Collins and the rest of the Senate Judiciary Committee that Roe v. Wade was “settled law” during his confirmation hearings to be a Supreme Court justice. Clearly, that was a lie as he has come down on the side of overturning Roe in the leaked Alito-authored decision emanating from someone near the Supreme Court.

In a provocative piece in the Sunday Review in The New York Times, Ross Douthat looks back at the origins of the Roe decision of 1973 as the real start of the seemingly insoluble culture wars that plague our country from abortion, to gay marriage, to immigration. To sum up his point, had the decision on abortion percolated up through the culture to arrive at state and federal legislative bodies to determine the legality of the procedure in the 1970s, perhaps we would have had an honest debate and come to a compromise solution–Bill Clinton’s “legal, safe, and rare.”

Instead, a majority of nine individuals made the decision for all of us in 1973 instead of having our elected representatives do their jobs. The same is true of the rest of the culture war issues. Congress won’t deal with it so states do or worse judiciaries do. It is not the role of the judiciary to legislate, yet that is what the Supreme Court has been forced to do. It is always dangerous when a non-elected body or worse, a small oligarchy, makes decisions that affect the entire body politic.

This happens in business all the time. CEOs make major decisions that set the course of a company’s marketing, manufacturing or sales. But that CEO is responsible to a board of directors and to shareholders. What happens when this is not the case?

We may find out with Twitter if Elon Musk takes it private and does what he wishes with the platform. He’s letting Trump back on in the name of fairness. Hmmm….

We are surely finding out in many academic medical centers where presidents have a free hand to do what they wish, often without board oversight, and without faculty participation.

The point is that everyone needs a boss and everyone needs to be responsible in a fiduciary manner to someone. When that is not the case, as is so at the level of the Supreme Court, politics takes over and lying is just considered good politics.

The abortion debate will not be quieted if the Supreme Court overturns Roe. As many have said, abortion will not stop. Safe abortion might.

If legal abortion, gay marriage, and how to manage immigration are to stop being controversial, it would be best if the people making the decisions on how these issues would be elected. In a republic such as ours, this must be done by the elected representatives. The Democrats in Congress are being disingenuous about abortion laws now, 49 years after Roe. Where the heck have they been all this time? I’ll tell you where. They were believing people like Brett Kavanaugh who claimed this was settled law. Guess what? It’s not. If it will ever will be, it will be up to the state legislatures to settle it and you can be sure of two things. Each state will have its own solution and many people in each state will be unhappy with that solution. Shame on the Democrats in Congress for their preposterous stance now. If they really cared, they would have had this debate years ago.

But remember, most Democrats in Congress are still men and most of them will not be affected by Roe being overturned–except perhaps at the ballot box.

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