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Horowitz: Red states should ban abortions even before official SCOTUS opinion

Op-ed
Casimiro/Getty Images

The weakest position in battle is to come out from behind defensive lines without cover but fail to advance toward the objective. Political combat is no different, and that is why the left leaked the rough draft of the Dobbs opinion reversing Roe. They hoped to pre-emptively expose the assault on Roe and elicit robust attacks before the red states get a chance to actualize its benefits. Red-state legislatures and governors need to do one better and pre-empt any blue state action by banning abortions immediately.

Roughly half the states, including most deep red states, are already out of session until 2023, and most will be done by the end of the month. The worst thing they can do is to allow this issue to fester – as if it’s still in contention – and allow the left and its machine of boycotting, censorship, and astroturfing to work its magic. Republican governors should immediately convene legislative sessions, ban abortions even before 15 weeks, and make the repeal of Roe a reality.

Such a move would have several benefits:

1) In politics, the more you debate an issue, the more it sows doubt, especially when you are trying to implement something new. When you just rip off the scab and implement it quickly, it demoralizes opponents and proves the veracity of the issue in the eyes of the voters by evincing an image of confidence and moral clarity. Just look at how the left successfully implemented COVID restrictions by seizing the moment without any debate. Had they left these issues to a protracted debate, they would never have been implemented in most states.

2) States issuing bans on abortion will make it that much harder for Roberts or external forces to pressure Barrett or Kavanaugh into watering down Alito’s draft majority opinion.

3) It will have the broader effect and ancillary benefit of delegitimizing judicial supremacy. It will show that when we are prepared to do something constitutional, moral, and just, we will do so regardless of the courts. The courts don’t have exclusive and final jurisdiction over constitutional interpretation, and Roe was legal fiction. Really, this should always be the attitude of the states, but now that there is at least an authentic draft of an opinion repudiating Roe, they should set the precedent of delegitimizing judicial supremacism, a principle they will need in the future on other issues. Red states will need to enforce immigration law and directly challenge the court’s ruling in Arizona v. United States (2012).

Senate establishment Republican types like Mitch McConnell who fervently believe in judicial supremacism are feigning outrage over the leak and focusing all their attention on that issue rather than on the banning of abortion itself. That is because they believe that we can only accomplish good policy with the courts and nothing else.

McConnell lambasted the leak as “an attack on the independence of the Supreme Court.” While the leak was certainly a reprehensible act, I disagree with this bromide of “the independent judiciary.” The judiciary is no more or less independent than the legislature and executive – both in the states and at the federal level. They are all independent of each other, each with their own powers. Every branch must use its powers in concert with the Constitution, not just the courts.

This is the core of what Lincoln did as president to thwart Dred Scott and even issue citizenship and passports to freed black slaves in direct opposition to the 1858 decision. During the sixth debate with Stephen Douglas during the 1858 race for Senate in Illinois, Lincoln asserted: “Judge Douglas understands the Constitution according to the Dred Scott decision, and he is bound to support it as he understands it. I understand it another way, and therefore I am bound to support it in the way in which I understand it.”

Lincoln observed that courts can adjudicate individual cases, but if they seek to use those rulings as a way of setting political policy across the nation, it should never be regarded as a “political rule” to be “binding on the members of Congress or the President to favor no measure that does not actually concur with the principles of that decision.”

During Lincoln’s inauguration on March 4, 1864, Chief Justice Roger Taney, the author of Dred Scott, was forced to administer the oath of office to the man who reminded him of his own impotence to give will or force to his bad opinion. After taking the oath, Lincoln delivered his inauguration address, in which he promised to treat black people as humans, not as property built upon another human being’s “substantive due process rights” to own them. He rejected the notion that “the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court the instant they are made in ordinary litigation between parties in personal actions.”

What Lincoln meant is that court opinions in a case or controversy – real or politicized – are not self-executing on the other branches of government and automatically universally binding on all the people. So how does the court succeed in making a ruling in a case the de facto “law of the land?” As Eleventh Circuit Judge William Pryor once wrote, it’s all on the power of persuasion:

Alexander Hamilton explained in Federalist No. 78 that judges exercise “neither FORCE nor WILL, but merely judgment.” Hamilton’s point was that we must depend upon the persuasiveness of our written opinions to command the respect of our fellow citizens.

It flows from here that if a court delivers a horrendous opinion that is clearly divorced from the history and tradition of our laws and Constitution, then the other branches and the states will not be convinced. This is why, unlike McConnell, conservatives should not be quite as concerned with the prospect of Barrett or Kavanaugh being convinced to change their opinions. This is not an official vote like that of a legislature. Courts don’t pass laws like a legislature, nor do they “strike down” or veto laws like a presidential veto. They offer an opinion in a case and, occasionally, can offer an opinion on a constitutional question to resolve that case. Remember, in the early days of the republic, there was an even number of justices on the court, a clear indication that it wasn’t designed to conduct votes on the most fundamental constitutional and political questions and have those outcomes enshrined with finality.

Now that we already know how the majority of the justices feel – that Roe is a legal fiction – there is nothing stopping the states from following the true Constitution and acting upon the Constitution as written the way we understood it before this leaked opinion. Any change in opinion henceforth, to paraphrase Judge Pryor, will indeed not be very persuasive and will not command the respect of our fellow citizens.
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