Roe is history. The left is furious. They ought to be contrite

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For more than a month, pro-abortion militants have been firebombing and smashing churches and anti-abortion family centers in anticipation of the U.S. Supreme Court ruling overturning Roe v. Wade.

On Friday they planned “A Night of Rage” to scream at conservative justices and to put the anti-abortion right on notice:

“To our oppressors: If abortions aren’t safe, you’re not either. Jane’s Revenge.”

The group’s name likely derives from the Jane Collective, part of the abortion underground in 1970s Chicago, reports Newsweek and Fox News.

They are the pro-abortion radicals. On Friday, slightly less-radical voices in Washington were burning on lower flame.

  • “(This is) one of the darkest days our country has ever seen,” said Senate Majority Leader Chuck Schumer, D-N.Y., as reported in the Washington Post. “Millions upon millions of American women are having their rights taken from them by five unelected justices on the extremist MAGA court.”

  • “Today, the Republican-controlled Supreme Court has achieved the GOP’s dark and extreme goal of ripping away women’s rights to make their own reproductive health decisions,” tweeted House Speaker Nancy Pelosi, D-Calif.

  • “We don’t care what a far-right extremist Supreme Court ... in a crisis of legitimacy says,” wrote U.S. Rep. Cori Bush, D-Mo. “Your racist, sexist, classist ruling won’t stop us from accessing the care we need.”

Roe pretended abortion was settled. It's not

Their anger was palpable. Their persecution felt.

But was it justified?

Maybe it’s time everyone slowed down and looked at Roe for what it was.

It was legal malpractice of the highest order that disenfranchised hundreds of millions of Americans by rationalizing that the Constitution had settled the question of abortion.

An issue that rightly belonged in state legislatures where citizens could argue for and against was commandeered by the Blackmun court and settled. This is not merely a conservative view.

Since Roe became law in 1973, a powerful consensus has been building among legal authorities left and right that Roe was constructed not on the breakwater of constitutional logic but on the seafoam of judicial activism.

Even the left agreed Roe was bad precedent

Here’s just a brief sampling from the left. And understand, I could easily add 20 more examples just like these:

Ruth Bader Ginsburg (Supreme Court justice): “The political process was moving in the early 1970s ... not swiftly enough for advocates for quick, complete change, but majoritarian institutions were listening and acting. (Roe’s) heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.

Edward Lazarus (attorney, clerk to Roe-author Justice Harry Blackmun): “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose, as someone who believes such a right has grounding elsewhere in the Constitution instead of where Roe placed it, and as someone who loved Roe’s author like a grandfather. ... (Roe) has little connection to the constitutional right it purportedly interpreted.”

Jeffrey Rosen (legal affairs editor, The New Republic): “In short, 30 years later, it seems increasingly clear that this pro-choice magazine was correct in 1973 when it criticized Roe on constitutional grounds. Its overturning would be the best thing that could happen to the federal judiciary, the pro-choice movement and the moderate majority of the American people.”

Michael Kinsley (opinion editor, Los Angeles Times; co-host of Crossfire): “Although I am pro-choice, I was taught in law school, and still believe, that Roe v. Wade is a muddle of bad reasoning and an authentic example of judicial overreaching. I also believe it was a political disaster for liberals. Roe is what first politicized religious conservatives while cutting off a political process that was legalizing abortion state by state anyway. Three decades later, that awakened giant controls the government.”

John Hart Ely (law professor; Yale, Harvard, Stanford; clerked for Chief Justice Earl Warren): “(Roe) is, nevertheless, a very bad decision. Not because it will perceptibly weaken the Court – it won’t; and not because it conflicts with either my idea of progress or what the evidence suggests is society’s – it doesn’t. It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.”

Liberals spent 50 years living rent-free

On Friday, President Joe Biden ignored this consensus and railed against today’s justices who agree with it.

“Make no mistake,” said Biden. “This decision is the culmination of a deliberate effort over decades to upset the balance of our law. It’s a realization of an extreme ideology and a tragic error by the Supreme Court.”

To the contrary, I’ve presented above just a fraction of the counterevidence that shows Biden is wrong.

American liberals have lived rent free for 50 years on the Blackmun decision. They didn’t have to frame arguments. They didn’t have to persuade 50 legislatures. The Blackmun court handed them the ball, the game and the whistle when it was only just beginning.

Today’s court is restarting the game where it always belonged – in the legislatures. But you can’t restart this game. Roe has been law for five decades, long enough for Americans to grow accustomed to legalized abortion. Roe was an enormous head start for the left.

So large that in Texas, today’s flagship of American conservatism, 78% of those recently polled said abortion should be allowed in some form while only 15% said it should be never permitted, according to a survey by the University of Texas at Austin.

Trump isn't the only one undermining institutions

States that do not quickly provide for legal abortion will face new coalitions of voters who will see that they do. Blackmun paved the way in gold for the left to eventually win in every state legislature.

And yet Democratic leaders are put out.

On Friday, they did not hesitate to land hammer blow after hammer blow on the columns of the court’s legitimacy.

“Five unelected justices on the extremist MAGA court.” Boom!

“(A ruling that derives from) extreme ideology.” Boom!

“A far-right extremist Supreme Court” and its “racist, sexist ruling.” Boom!

Let’s hear no more lectures from Democrats on how Donald Trump undermines U.S. institutions and destroys democracy. This is a two-party wrecking crew.

And what of the people left in the cold by the 1973 Roe decision. What of the small “d” democrats who oppose abortion?

The Blackmun court took their voices and their votes and held them in suspended animation for five decades.

When is their “Night of Rage”?

Phil Boas is an editorial columnist for The Arizona Republic. Reach him at phil.boas@arizonarepublic.com

This article originally appeared on Arizona Republic: Democrats lived rent-free for 50 years off Roe v. Wade