Opinion: Alito steers a better course for abortion, a raging river of politics

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Reading Justice Samuel Alito’s leaked draft that would overturn Roe v. Wade brought back memories.

When I was in Congress, I had a 90%-plus pro-life voting record. For example, I supported bans on certain late-term abortions, and the Hyde Amendment, which banned federal funding in Medicaid except in cases of rape, incest, and life of the mother.

However, I didn’t always vote lock step pro-life without looking at the particulars of the legislation.

My colleagues in Congress fell into line even on a far-too-broad abortion restriction

In my first term, Congressman Tom DeLay introduced an amendment to an appropriations bill that would have banned Medicaid funding to training programs teaching OB-GYN residents how to perform a dilation and curettage, or D&C, used in abortions. It is also a surgical procedure necessary for evacuating a uterus of an incomplete spontaneous miscarriage, something that has nothing to do with an elective abortion. It was inconceivable to me that a gynecologist couldn’t be taught a surgical procedure that is necessary for the health and possibly life of a woman who is having a miscarriage.

As one of the few doctors in Congress at that time, I felt it was important with my medical knowledge to oppose this amendment. I therefore lobbied my Republican colleagues that this was a misguided amendment and should be defeated even if they were pro-life. I started my rounds of personal visits with my GOP colleagues. Some were receptive, but most were afraid to oppose the pro-life lobby, as it might affect their voting scores. All understood what my argument was. I might add that pro-choice legislators tend to vote in lockstep, too.

Particularly memorable was my visit with my friend Rep. Pat Roberts, chairman of the Agriculture Committee. Pat sat back and listened to my reasoning, and then in his typically pithy way explained why he couldn’t support me even though what I said was common sense: “Greg, years ago when I came to Congress, you took a position on abortion and never deviated from that. You were in a little boat on a slow placid river. Now that little stream is a raging torrent, and you will get drowned if you leave your boat.”

Before the vote on the floor of Congress, an Iowa pro-life lobbyist came to visit and said, “Greg, we understand you are a doctor and why you are taking this position on the amendment, but we really wish you wouldn’t take the lead on it.” Well, I felt that if I didn’t I wouldn’t be true to myself, so I went to the floor and gave my speech against it. The amendment was eventually dropped in the Senate.

Roe was a poorly reasoned decision, as even abortion-rights supporters have acknowledged

At that time, I was asked what I thought about Roe v. Wade, and my position was that it was a poorly reasoned opinion and should be overruled. This was also in line with my position on state and federal jurisdiction of health care, which I reiterated in a Des Moines Register essay on last year, “Federal or State Management of Covid-19: Weighing Assistance Versus Assumption of Duty.

My opinion on Roe v. Wade has not changed. The Supreme Court is set to rule on whether Mississippi can ban abortions after 15 weeks of gestation. From Alito’s leaked draft, it looks as if Roe v. Wade is finally going to be overturned.

What was wrong with Roe and why did it not resolve the abortion controversy but, instead, lead to 50 years of division?

In the Roe decision, Justice Harry Blackmun gave a long history of abortion going back to the Persians, Greeks and Romans and cited early English authors. He just couldn’t find a provision in the Constitution that protected abortion rights. This vital omission and the actual pertinent legal history of abortion is thoroughly discussed in Alito’s draft opinion: “The Constitution makes no reference to abortion and no such right is implicitly protected by any constitutional provision. … (Roe’s) reasoning was exceptionally weak.”

Many pro-choice constitutional scholars, including liberal icon Justice Ruth Bader Ginsburg, have criticized Roe similarly.

Blackmun based his ruling on the idea that the 14th Amendment protects a broad right to “privacy,” while acknowledging the Constitution “does not explicitly mention any right of privacy” but that its protection for personal liberty and privacy “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Alito points out that when the 14th Amendment was adopted, abortion was illegal in three-fourths of the states and gives many reasons why Blackmun was wrong in his reasoning citing many other Supreme Court decisions.

As one of many examples of state laws when the 14th Amendment was adopted, Alito’s Appendix contains the Iowa law from 1858: “Every person who shall willfully administer to any pregnant woman, any medicine, drug substance or thing whatsoever, or shall use or employ any instrument or other means whatever, with the intent thereby to procure the miscarriage of any such woman, unless the same shall be necessary to preserve the life of such woman shall upon conviction thereof, be punished by imprisonment in the county jail for a term of not exceeding one year and be fined in a sum not exceeding one thousand dollars.”

Some prominent legal scholars derided Roe. Yale law professor John Hart Ely, a former clerk to Chief Justice Earl Warren, acerbically said that Roe “is not constitutional law and gives almost no sense of obligation to try to be.”

Roe’s timetable that abortions would be legal through the first three months of pregnancy was acknowledged as arbitrary even by Blackmun himself, who said. “This is arbitrary, but perhaps any other selected point, such as quickening or viability, is equally arbitrary.” As Alito’s draft points out, this reasoning is appropriate for legislation but not for judging.

Returning this issue to states for them to decide is the right path

In the 1992 Planned Parenthood v. Casey decision, the Supreme Court subsequently recognized that Blackmun’s reasoning was weak; Alito summarizes that justices “pointedly refrained from endorsing most of its reasoning. It revised the textual basis for the abortion right, silently abandoned Roe’s erroneous historical narrative, and jettisoned the trimester framework. But it replaced that scheme with an arbitrary ‘undue burden’ test and relied on an exceptional version of Stare Decisis that, as explained below, this Court had never applied and has never invoked since.”

The Alito draft finds “five factors in favor of overruling Roe and Casey: the nature of their error, the quality of their reasoning, the 'workability' of the rules they imposed on the country, their disruptive effect on other areas of the law and the absence of concrete reliance.”

Did justices who voted to revoke Roe lie about precedent, or stare decisis, in their confirmation hearings? Alito addresses stare decisis in a convincing, detailed analysis. Liberal pundit Bill Maher simplifies the issue: Just because the court respects precedent doesn’t mean that previous decisions can never be overruled and are set in stone — “otherwise we’d still have Plessy v. Ferguson,” i.e. separate but equal, and the court would not have ruled as it did in Brown v. Board of Education and many other cases that overruled precedent.

The Alito draft recognizes that, in turning the issue of the legality of abortion with all its permutations and details back to states, “voters may believe that the right (to an abortion) should be even more expansive than the right that Roe recognized.” New York and California already effectively place relatively few restrictions on abortion.

Furthermore, the Alito draft expressly says that this ruling will not apply to other rights such as interracial marriage, birth control access, or gay marriage because what sharply distinguishes abortion from those rights is that abortion is dealing with the life of an “unborn human being.”

“Those rights (such as gay marriage) do not support the right to obtain an abortion and by the same token, our conclusion that the Constitution does not confer such a right (to an abortion) does not undermine them in any way.” The fact that one of the Supreme Court justices is in an interracial marriage himself makes laughable the claim that interracial marriage is on the chopping block.

Will abortion politics continue to be divisive? Will politicians still find themselves in a little boat in a raging river? Undoubtedly! I hope they approach their votes with the courage of their own convictions. Overruling Roe may not satisfy all in the anti-abortion movement because the Alito draft is not recognizing a “right to life,” just as the prospect of overruling Roe is causing great angst among those who are pro-choice. It will move the issue to the states, where it belongs.

Finally, I encourage you to read the Alito draft on Dobbs v. Jackson Women’s Health Organization and the Roe v. Wade decision and be better informed than the vast majority.

Dr. Greg Ganske is a retiredv surgeon who served Iowa in Congress from 1995 to 2002.

This article originally appeared on Des Moines Register: Opinion: Alito steers a better course for abortion