The Abortion Decision and Civic Literacy

I had the purely coincidental experience of teaching today both Roe and Casey in my Constitutional Experience course required of all Baylor students, so there are 250 of them in my class. That in combination with my browsing of Twitter (I’m on it too much now) convinces me that this decision illustrates well that we have a profound civic literacy problem. Many on Twitter and many in my class (apparently I haven’t taught them well) seemed to think that the decision would mean the immediate stoppage of all abortions nationwide. Some on Twitter worried that this decision would have an effect on things like Colorado’s recent constitutional amendment guaranteeing a right to abortion. Others on Twitter are convinced that if the Republicans take Congress in 2022, they are now free to pass a law overturning all state laws that permit abortion. Senator Chuck Schumer joined in the fun of civic illiteracy promising that “The Senate will hold a vote on legislation to codify the right to abortion in law.” In defense of Schumer’s civic literacy, he seems to indicate that he knows that this vote isn’t constitutional by saying in the next sentence: “We will vote on protecting a women’s right to choose, and every American is going to see which side every senator stands on.” That is, he essentially admits that this vote is purely performative. He doesn’t seem interested in showing how the Senate has the constitutional authority to codify the right to an abortion into law. In other words, Schumer happily participates in the orgy of civic illiteracy that is running rampant in the wake of yesterday’s leaked majority opinion. The majority opinion actually does nothing to threaten the right to an abortion in those states where the right is already protected. It also does nothing which would allow Republicans to overturn the last fifty years of federalism jurisprudence–a jurisprudence to which their party has been committed. In the wake of the Lopez decision, that jurisprudence prevents Congress from making laws that have nothing to do with its commerce power. It’s hard to see how the commerce power would permit Congress to overturn all state laws that permit abortion, on the one hand, or permit Congress to codify a right to an abortion, on the other. Based on my experience talking to students and in my browsing of Twitter, the American people don’t understand what’s going on. There are very important distinctions between the state’s police power to regulate abortion, the Supreme Court’s jurisprudential power to decide on the constitutionality of those regulations, and Congress’s commerce power to regulate it independently of the states. The American people seem to view all of these things as just an exercise of political power, regardless of who’s exercising that power. If it’s all just a matter of the exercise of power, then it becomes difficult to understand why the Supreme Court would exercise its authority over abortion by giving that authority back to the states. Given that the majority of the Supreme Court justices were appointed by pro-life Republicans, so even an educated citizen thinks, of course it must be making abortion illegal. This civic illiteracy has its roots in a variety of sources; I would only hope that our reaction to the opinion corrects and improves it rather than pandering to it. Knowing that the decision returns abortion regulation back to the states is different than either supporting or opposing the decision. Both sides need to understand what the decision actually does before judging it. Conservatives shouldn’t celebrate it for making abortion illegal nationwide, nor should liberals oppose it for the same reason. Certain states will now feel free to make it illegal, but in many other states abortion will remain legal and available.

One thought on “The Abortion Decision and Civic Literacy

  1. If Congress did have the power to legislate on abortion, then, in addition to the legislation proposed by Sen. Schumer, Congress would presumably also have the power to ban abortions nationally.

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