Draft Repeal of Roe v. Wade Demonstrates the Need for Congress to Follow Through With Legislation

Photo by Gayatri Malhotra on Unsplash

Well, here we are.

We now know definitively six of the nine unelected monarchs on the United States Supreme Court (SCOTUS) are poised to overturn the landmark 1973 Roe versus Wade case legalizing abortion thanks to a leaked draft decision published earlier this week.

We should not be here nearly half a century after Roe vs. Wade.

The reason we are is because Congress did not do its job of codifying abortion rights into law.

While it remains to be seen whether the high court will actually follow through on the possible decision — especially in light of all the fallout — many are asking, “What’s next?

After all, the argument Justice Samuel Alito, the author of the leaked draft, makes is that since abortion rights are not stated in the Constitution, those rights should legally fall within the purview of the states.

The old “states’ rights” canard again.

The Supreme Court’s role is not to make laws but interpret them and determine their constitutionality.

It is Congress’ job to create laws.

Yet Congress has traditionally leaned on SCOTUS decisions a little too much a few too many times by not following through with laws the Court couldn’t later unilaterally overturn.

We applaud the Court for overturning its 1896 Plessy v. Ferguson argument that legalized race-based segregation in its 1954 Brown v. Topeka Board of Education decision, arguing Plessy violated the 14th amendment.

But the 14th amendment was passed in 1868, a full 28 years before the Plessy case, and the SCOTUS justices then didn’t see it applicable.

While citing the 14th amendment arguably implies Congressional protection, Congress never explicitly passed any other law following Brown v. Board to prevent it from being reversed.

Could the SCOTUS reverse it now?

There was a time birth control in any form was illegal, even among married couples.

But in 1965, the Court ruled in Griswold v. Connecticut the fourth-amendment right to privacy extends to people’s bedrooms.

Is that in danger of being overturned as well?

In 1986, the Court ruled there was no constitutional protection of sodomy, permitting states to outlaw homosexual intercourse, after a Georgia police officer arrested Michael Hardwick for sodomy and Hardwick sued.

In 2003, the Court reversed that decision in Lawrence v. Texas.

Could that be on the chopping block now too since it was never reinforced with specific legislation?

Same-sex marriage is legal now nationwide thanks to the SCOTUS’ 2015 Obergefell decision, again relying on an interpretation of the 14th amendment, specifically its “Due Process and Equal Protection” clauses.

But this too was never followed by Congressional action, so might it too be in peril?

It wasn’t supposed to be this way.

The so-called “originalists” on the Court are no doubt well aware of what Alexander Hamilton wrote in Federalist no. 78:

“[T]he judiciary is beyond comparison the weakest of the three departments of power…It can never attack with success either of the other two [branches].”

And yet, Hamilton, James Madison, and John Jay-the Federalist Papers’ authors-argued against people’s concerns over maintaining a judiciary with lifetime appointments in Federalist 78:

“[F]rom the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches.”

In other words, “separation of powers” would prevent the president or Congress from “overpowering” the “feeble” Supreme Court; lifetime appointments would prevent arbitrary politically motivated dismissals.

But over time we have witnessed (no pun intended) the high court’s willingness to act as dictatorial overlords making up law out of whole cloth.

Moreover, judges at city, county, state, and federal levels are bound to a code of ethics.

Not the U.S. Supreme Court, though.

The Constitution provides Congress with the authority to regulate the Court.

So regulate it it must.

In addition to doing that, Congress must also pass the “ Women’s Health Protection Act of 2022” to codify abortion rights.

It needs to pass federal law outlawing school segregation before states of the former Confederacy decide they need to “protect children” from “ Critical Race Theory “ and “wokeism.”

It needs to pass federal legislation protecting same-sex marriage before the same tyrannical Supreme Court capitulates further to the so-called “religious” right.

Call your members of Congress at 202–224–3121.

Originally published at https://theleftplace.substack.com on May 9, 2022.

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Ted Millar is a teacher, poet, and political writer for Liberal America and the Left Place blog on Substack: https://theleftplace.substack.com/.

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Ted Millar

Ted Millar

Ted Millar is a teacher, poet, and political writer for Liberal America and the Left Place blog on Substack: https://theleftplace.substack.com/.

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