"Yes, States Do Have Rights!"
Maybe you were just mad, ticked off, and wanted to be heard. I like that! You've got fire in your belly and you're not afraid to let it out. When your legislators voted last week to ban all abortion except in the case of a life-threatening medical emergency of the mother, you caught us all by surprise.
You reminded me, in particular, that I spend too much time in Europe, New York, and L.A. and not enough time with normal folk like you. And you began to lead. Most news outlets reluctantly reported that the Mississippi legislator concurred with your "isolated, radical views" with an isolated, radical vote of their own. South Dakotans, my guess is that your little state (that's what we think about South Dakota) feels pretty big right now, and it should. You've sent a message and it's been heard.
We weren't all happy with the message content. I, myself, having heard the news rumbling across the Great Plains and the great midwest, was a bit concerned about what this law will mean for America and for the long-term success of the pro-life movement. But after the initial shock, I caught myself. Passionate issues require reflective action. I tried to think about you and what may have provoked your outrage. It came in a flash: "My goodness! That's right. States do have rights."
I don't mean to defend myself, to blame my forgetfulness on anyone else. But some justification is in order. I feel I've been duped, we've been duped. Do you remember when in 1992 we were asked to keep a lid on it? I'm referring to one of the most egregious examples of judicial arrogance in American history. Sandra Day O'Connor, a brilliant mind and a brilliant person, had this to say to States and to pro-lifers in the 1992 Casey decision which entrenched Roe v. Wade abortion law:
"Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court's interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate..."
Did you catch it? Go ahead and read it again, and again, and again. No, it's not badly written. It's the content that's indigestible — a highly respected Supreme Court justice telling Americans to "end their national division by accepting a common mandate..." Well, I take it back. Maybe it is written poorly, but not by mistake. The parenthetic language did a doozy on the news world in its day, cautiously softening the condescending punch by avoiding at all costs a clear, reportable, sound bite. But now we've got it and we can't let it go. Yes, we were told by the majority of nine judges to keep a lid on a deep, dark secret: "states don't have rights".
But my thanks to you, the citizens of South Dakota, don't stop there. Your civil disobedience in speaking out is good for the abortion debate for another reason. As divisive as your new law may appear to the national press, it could bring a significant sense of calm to pro-abortion and anti-abortion advocates alike. Polls consistently show that most people believe that "overturning Roe" would make most or all abortions illegal. This is not the case. Overturning Roe simply means that each state legislature, and perhaps Congress, would have the authority to determine what restrictions or limits, if any, would apply to abortion. The American people, acting through their elected representatives or by popular referendum, would set abortion policy. The likely result of Roe being overturned is that states will take different approaches — some states have already made laws allowing for abortion on demand in case Roe is overturned and others may follow suit. Others, like your own, would ban virtually all abortions. Still others would come out somewhere in between.
Yes, a breath of fresh air. Overturning Roe would not be another judicial mandate seeking to end debate. It would actually diffuse, in the long run, the hotly-charged atmosphere and lack of civility that characterizes the current public brawls on abortion law. Everyone interested would have their say. And that's why the question of states' rights is so very important. It is a protection of democracy, where some win and some lose, but all have a vote. In this constitutional system, legislation losers have an opportunity to elect new representatives, local folks who know them and their values, in order to come back and fight another day.
But listen up, South Dakotans. Until now I've sung your praises. Now, I've got some gripes to share. I confided earlier that when I heard the news of your legislation, I was concerned for the long-term success of the pro-life movement. That concern is still with me. You see, I think you jumped the gun. Your double goal of defending states' rights and the life of the unborn is laudable. But you have to know how to pick your battles to win a war. In the current state of abortion law, the only battle that ultimately matters is the one that will go down in the Supreme Court. Are you going to win that one?
After a quick state referendum vote, your new law banning most abortions will be challenged and sent to the district level (court of first instance). This will take about a year. Win or lose, it will be appealed and handed off to a federal court. Another year, another appeal, and the law will be offered to the Supreme Court. During these three years, Planned Parenthood and cohorts will conduct a fund-raising campaign of biblical proportions. Their tune will not be: "Look out, states rights' are coming back", but something more along the lines of: "Get scared, abortion rights to be nuked nationwide."
Then again, fund-raising is just another battle, and not the one that ultimately matters. The question remains, "Are you going to win that one?" Let's count. Of the nine sitting Supreme Court justices, how many will vote to overturn Roe? One, two, maybe three, maybe four? That's all. Justice Kennedy will lead the majority opinion of at least five justices to reject the appeal and to further entrench the precedence of Roe.
My strategic suggestion to South Dakotans state-wide: If you have an "inside the beltway" scoop about a new retirement in the Supreme Court on its way, don't let the news leak, and then go for broke! If you don't have a scoop, well, say a prayer and hope for the best, because you already went for it and we might end up broke.
But don't be depressed. Either way, you've taught us a lot. You brought the issues of states rights back to the headlines and to this blog and your intention was to fight for the weakest among us. Your resistance to those who wish we would just put the lid on anything that's divisive, regardless if it is right or wrong, has reminded us of times past when mavericks questioned old social mores until they finally fell. President Abraham Lincoln would have been proud of you. Do you remember what he said regarding the Kansas-Nebraska act?
"Repeal the Declaration of Independence — repeal all past history — you still cannot repeal human nature. It will still be the abundance of man's heart, that slavery extension is wrong; and out of the abundance of his heart, his mouth will continue to speak."
South Dakotans, if you don't mind, I'd like to spend more time with you, real folk who have fire in their belly and who aren't afraid to let it out.
God bless, Father Jonathan
P.S. A note to the readers of this blog community: does this explanation clarify the issue? I hope so. You can write to me with your comments at email@example.com
P.P.S Yesterday I did a television segment on the 2:00pm (ET) hour with Martha MacCallum about this topic. For those who missed it, you can find it in the archives area under "video." Martha is a great anchor, a good friend, and really makes being a commentator fun and easy. I'm sure we'll have more time to discuss this on the air and on this blog. Until Friday, ciao!
This article is part of a regular blog hosted by Father Jonathan Morris on FOXNews.com.