Opinion: Stead: The right to choose should be guaranteed by new laws
Independence Day is an important time to consider our liberties. The Supreme Court has challenged the legislatures of the states to decide if their citizens are entitled to reproductive freedoms by passing or repealing laws rather than relying upon court decisions to do their work for them.
For a very long time, legal scholars have said that the logic behind Roe vs. Wade was somewhat tortured. It essentially created a new concept, the right to privacy, extrapolated from the prohibition of unregulated search and seizure by government forces guaranteed in the Constitution. It was a reach in legal philosophy, but the concept of a right to privacy, a right to be left alone, had great appeal even before social media was invented. I touched on this briefly in the first column I ever wrote for the Times in 2006, introducing myself and my overall philosophy.
“I am philosophically a conservative, and have come up with a word to describe my overall leanings. I am a ''modicon.''
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You have heard and read a great deal about neocons. The name was coined to describe the followers of Newt Gingrich when the Republicans took control of Congress in the 1980s. In addition to classic low-tax and small-government positions, they added an element of social engineering in response to decades of erosion in American principles, such as a commitment to marriage, striving for the next generation instead of heedlessly seeking out personal and instant gratification, and a reverence for tradition and family life.
'I am a classic conservative.'
While I remain in sympathy with their impulses, I think they have gone too far in the other direction and have begun trying to micromanage the moral life of Americans through law rather than persuasion. Hence, I am a modicon, not a neocon. As a modicon, I am a classic conservative. I am so conservative that I do not believe that government has any business regulating medical procedures beyond ensuring safety and sanitation…We are a nation of laws — all laws, not just the ones that we like.”
Over the past 15-plus years, this impulse toward social engineering has gained in popularity on both ends of the political spectrum. The extremes on the political spectrum have increasingly sought to create legal precedents to compel where they could not persuade. The primary tool of "change" became the lawsuit, and the progressives had great success in using the courts to enforce their concepts. But the worm turned when more conservative judges were appointed, and the overturning of Roe is being presented as a national catastrophe and ethical triumph at the same time. But it is really the abandonment of the creation of statutes in favor of judicial control as lawmakers abandon their duties.
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Our state legislatures have had 50 years to legislate and regulate the procedures surrounding abortion. But legislators knew that it was a divisive issue, so it was easier to hide behind a court decision. Once, they had more spine. When Brown vs. the Board of Education was decided, the decision was not considered a last word needing no actual statute to truly enact it. After a few years, the Civil Rights Act of 1964 was passed. Then, not only the decision upheld equality, so did the actual law of the land.
Roe v. Wade never codified by law
But there was no such effort to extend protection to women after Roe. The laws remained on the books, an invitation to selective enforcement if ever there was one. Gov. Baker ‘"decriminalized" abortion even if he could not legalize it; then came the hasty passage of a ‘Roe Act’ only months ago. But for decades, access was piecemeal and arbitrary. Going off Cape is nothing new — women had to do so for decades even to access contraception due to the supermajority of Democrats ruling the Legislature for almost two generations and capable of enacting any law and overruling any veto. But it wasn’t until after 2001 that contraception could be covered on Massachusetts health insurance policies as a medication. Until that time, the full price had to be paid. I was lucky enough to be able to afford the $400 for my IUD, but many women couldn’t afford it. We lack abortion services at our only hospital, and the only clinic once in Hyannis shut down after a fatality. But we seem terribly worried about ‘red’ states, and the possibility that women might have to travel for services.
Our Congress and legislatures have punted long enough. It is time to stop debating and change or create statutes, not unilateral executive orders or court decisions. I deeply support choice but I want that opportunity to be a real one, not a technicality or precedent which can be changed without debate just as it came to be created. There are many other such issues, such as immigration policy, that Congress and legislatures let courts decide for them. Don’t whine about not being able to pass things so we don’t take a vote — put everyone on record so voters can decide. Our Constitution intended the states to be different, to be ‘incubators’ of laws and ideas. Same-sex marriage was created in exactly that way. So for Independence Day, let’s put our elected officials to work, on the record and facing the voters. It’s the modicon thing to do.
This article originally appeared on Cape Cod Times: Opinion: Stead: The right to choose should be guaranteed by new laws
