Abortion: An End to Hysteria

Abortion: An End to Hysteria

The reaction to Justice Alito’s leaked abortion opinion makes clear that the industry and its Democratic allies have abandoned any desire that abortion should be ‘safe, legal and rare.’ That would imply efforts to discourage it in the European manner through waiting periods, counselling requirements, co-payments and notification requirements. What is now wanted is instant gratification: a charter for free love and the ‘hookup culture.,’ a political mobilizing device to secure the allegiance of what the British once called the ‘flapper vote’ and what in the American context is a single-issue ‘airhead vote.’

Justice Alito’s overly prolix opinion would replace a ‘strict scrutiny’ test for abortion laws with the ‘rational basis’ test commonly applied to social and economic legislation. ‘Strict scrutiny’ was once applied only to matters essential to democratic government: free speech, voting rights, fair criminal procedure: it is now being returned to its proper place.

Curiously, the ‘rational bases’ listed in Justice Alito’s draft do not include the most compelling one: that uncertainty as to availability of abortion induces greater care in contraception and in the choice of sexual partners.

25 years ago, Secretary of the Treasury Janet Yellen and her husband, the Nobel Prize economist George Akerlof published two articles showing that abortion on demand and not the new birth control pills accounted for a change in mores inducing greater sexual activity among unmarried women and a greater willingness of their consorts to tell women to “deal with” unwanted pregnancies in place of so-called shotgun marriages.

Births out of wedlock among the general population have escalated from 4% in the early 1970s to nearly 30% today; among blacks from 30% to 70%. Liberal abortion laws, expected to reduce births out of wedlock have instead escalated them. The proportion of unwanted pregnancies ending in shotgun marriages has fallen by three-fourths. Many women, especially the less educated, who have relied on abortion on demand have found that because of ignorance, lack of means, parental or consort pressure, religious feeling or a maternal instinct not to kill the fetus that they cannot go through with an abortion. This development, invisible to insulated members of the legal academy who do not consort with bank tellers and super-market clerks is documented in Charles Murray’s Losing Ground. The supposed beneficiaries of liberal laws find themselves heavily burdened in middle age and lonely when old

Experience under the Welfare Reform Act of 1996, which likewise produced a violent outcry from the mis-called feminist lobby illustrates that greater uncertainty as to the availability of a benefit leads to decreased claims for that benefit. Since 1996, births to unmarried teenagers have decreased by two-thirds.

The result of less certain availability of abortion will not be a return to the morality of the 1950s, but should be a decline in the ratio of births out of wedlock to the lower levels prevailing throughout Europe. A fall of one-third would spare hundreds of thousands of young women the consequences of the ‘feminization of poverty.’

The European experience and that with the American law of divorce suggests that draconian rules in some states will be rather swiftly eroded without disenfranchising and embittering voters..

The extravagant claims of Alito’s critics are unfounded. Statutes against racially mixed marriage were invalidated under the Equal Protection clause, not privacy doctrines. A court with two justices in such marriages is unlikely to molest them. Similarly, anticontraception laws, present in only two states in the 1960s and unenforced there are unllikely to be revived. “Legislatures,” Justice Harlan Fiske Stone observed in the 1930s, “are the guardians of people’s liberties in as great measure as the courts.” “The Constitution,” Justice Holmes reminded us, “was made for people of different views.” The charge that the draft opinion uniquely “takes away rights” is absurd. Numerous businessmen alleged that property rights of various kinds wee taken away by the overruling decisions which sustained wage and hour legislation during the New Deal. and which invalidated racial segregation. Those who decry an overruling decision in the abortion context were silent when a recent decision overruled a decision sustaining the anti-sodomy laws. Constitutional law, as Judge Richard Posner has observed, cannot be viewed as an “one way ratchet.” General De Gaulle in the last volume of his memoirs viewed the then reservation of moral and social issues to the States as one of the great strengths of the American Constitution, leaving the federal government free to focus on questions of economics and foreign affairs Those upholding Roe and five-man or seven man rule “care not who makes the laws nor how, so long as the laws are to their liking.”

The probable effects of a new decision are overblown, but almost entirely beneficial. More than fifty years ago, Judge Learned Hand predicted that an attempt to impose a national rule would produce “conflicts undreamed of by those who use this facile means to enforce their will.” He was right.

The writer, President of the Library Company of the Baltimore Bar, is the author of The Common Law Tradition: A Colective Portrait if Five Legal Scholars (Transaction Books), among other works.

Abortion: An End to Hysteria

The reaction to Justice Alito’s leaked abortion opinion makes clear that the industry and its Democratic allies have abandoned any desire that abortion should be ‘safe, legal and rare.’ That would imply efforts to discourage it in the European manner through waiting periods, counselling requirements, co-payments and notification requirements. What is now wanted is instant gratification: a charter for free love and the ‘hookup culture.,’ a political mobilizing device to secure the allegiance of what the British once called the ‘flapper vote’ and what in the American context is a single-issue ‘airhead vote.’

Justice Alito’s overly prolix opinion would replace a ‘strict scrutiny’ test for abortion laws with the ‘rational basis’ test commonly applied to social and economic legislation. ‘Strict scrutiny’ was once applied only to matters essential to democratic government: free speech, voting rights, fair criminal procedure: it is now being returned to its proper place.

Curiously, the ‘rational bases’ listed in Justice Alito’s draft do not include the most compelling one: that uncertainty as to availability of abortion induces greater care in contraception and in the choice of sexual partners.

25 years ago, Secretary of the Treasury Janet Yellen and her husband, the Nobel Prize economist George Akerlof published two articles showing that abortion on demand and not the new birth control pills accounted for a change in mores inducing greater sexual activity among unmarried women and a greater willingness of their consorts to tell women to “deal with” unwanted pregnancies in place of so-called shotgun marriages.

Births out of wedlock among the general population have escalated from 4% in the early 1970s to nearly 30% today; among blacks from 30% to 70%. Liberal abortion laws, expected to reduce births out of wedlock have instead escalated them. The proportion of unwanted pregnancies ending in shotgun marriages has fallen by three-fourths. Many women, especially the less educated, who have relied on abortion on demand have found that because of ignorance, lack of means, parental or consort pressure, religious feeling or a maternal instinct not to kill the fetus that they cannot go through with an abortion. This development, invisible to insulated members of the legal academy who do not consort with bank tellers and super-market clerks is documented in Charles Murray’s Losing Ground. The supposed beneficiaries of liberal laws find themselves heavily burdened in middle age and lonely when old

Experience under the Welfare Reform Act of 1996, which likewise produced a violent outcry from the mis-called feminist lobby illustrates that greater uncertainty as to the availability of a benefit leads to decreased claims for that benefit. Since 1996, births to unmarried teenagers have decreased by two-thirds.

The result of less certain availability of abortion will not be a return to the morality of the 1950s, but should be a decline in the ratio of births out of wedlock to the lower levels prevailing throughout Europe. A fall of one-third would spare hundreds of thousands of young women the consequences of the ‘feminization of poverty.’

The European experience and that with the American law of divorce suggests that draconian rules in some states will be rather swiftly eroded without disenfranchising and embittering voters..

The extravagant claims of Alito’s critics are unfounded. Statutes against racially mixed marriage were invalidated under the Equal Protection clause, not privacy doctrines. A court with two justices in such marriages is unlikely to molest them. Similarly, anticontraception laws, present in only two states in the 1960s and unenforced there are unllikely to be revived. “Legislatures,” Justice Harlan Fiske Stone observed in the 1930s, “are the guardians of people’s liberties in as great measure as the courts.” “The Constitution,” Justice Holmes reminded us, “was made for people of different views.” The charge that the draft opinion uniquely “takes away rights” is absurd. Numerous businessmen alleged that property rights of various kinds wee taken away by the overruling decisions which sustained wage and hour legislation during the New Deal. and which invalidated racial segregation. Those who decry an overruling decision in the abortion context were silent when a recent decision overruled a decision sustaining the anti-sodomy laws. Constitutional law, as Judge Richard Posner has observed, cannot be viewed as an “one way ratchet.” General De Gaulle in the last volume of his memoirs viewed the then reservation of moral and social issues to the States as one of the great strengths of the American Constitution, leaving the federal government free to focus on questions of economics and foreign affairs Those upholding Roe and five-man or seven man rule “care not who makes the laws nor how, so long as the laws are to their liking.”

The probable effects of a new decision are overblown, but almost entirely beneficial. More than fifty years ago, Judge Learned Hand predicted that an attempt to impose a national rule would produce “conflicts undreamed of by those who use this facile means to enforce their will.” He was right.

The writer, President of the Library Company of the Baltimore Bar, is the author of The Common Law Tradition: A Colective Portrait if Five Legal Scholars (Transaction Books), among other works.

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