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- Robert Tulip
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The essential issue in this decision is about the misuse of political power. At the time of Roe v Wade, Congress did not have enough votes to enforce the national legalisation of abortion, so use of the judicial process was a way to get around this democratic deficit.
Justice Alito’s description of the use of the privacy line in the constitution in Roe v Wade as “an abuse of judicial authority” is correct, illustrating that opponents of abortion are viewed with contempt by pro choice advocates. This perception of abuse and contempt drives the popular anger among those opposed to abortion. Progressives rode roughshod over the concerns of their opponents, presenting them as primitive and oppressive and stupid. Mutual demonisation led to the steady growth of abortion as a flashpoint and signal of social division.
Use of courts to change the law in contested political questions increases the polarisation of opinion, lacking the legitimacy and authority inherent in legislative policy decisions made by government. In a democracy, major policy decisions should be made by the legislature, not the judiciary. Forcing a policy on communities who disagree with it should only occur when the moral issues are very clear, as they were with slavery but are not with abortion.
If we think about the counterfactual, what would have occurred if SCOTUS had not legalised abortion? There would have been ongoing suffering of parents forced to raise unwanted children, for a start.
But on the other side, there would not have been an undemocratic suppression of the rights of states to make their own decisions. The nation would not have had the debate about the authority of the Supreme Court to overrule the authority of states. As a result, the role of abortion as central to the culture war would not have been so fraught.
Meanwhile, the pressure for abortion on demand would have continued to grow. States that continued to ban abortion would have been criticised for the inevitable human rights abuses, such as criminal action against women who had miscarriages. Instead of debate about the arrogance of liberal elites in demeaning the moral values of conservatives, the main moral issue would have been the problems of unwanted births. It is conceivable that while the progress toward abortion law reform would have been slower, it might well have been more effective, gradually building pressure for legislative action at the federal level.
This all illustrates how central process is to outcomes. When due process is short circuited, grievance is created, and the aggrieved will build their resentment by campaigning against the decision.