Supreme Court Gets It Right in Overturning Roe v. Wade (finally)

Yesterday, June 24, 2022, the Supreme Court overturned the fifty-year abortion ruling effectively legalizing abortion in all fifty states. They simply referred abortion law back to the states, where it should have been all along, according to the majority opinion written by Justice Samuel Alito. What yesterday's ruling does not do is outlaw abortion. The Justices in the majority believed the states' elected representatives should make their own laws, removing from the Supreme Court the responsibility not granted to them in the Constitution. There will be continuous debate on this issue going forward into the November mid-term elections and beyond. Contrary to popular misguided opinion that is being trumpeted from the streets, this ruling will do far more to protect the rights of women nationwide than it will to curtail those rights.

What we believe about abortion determines much of who we are as individuals and as a nation. We are about evenly divided if the deadlock in the Senate over the number of Republicans and Democrats is an indicator. Abortion is carefully defined as "Pro-Choice" in one camp, and "Pro-Life" in the other. 

Truthfully, since Roe v. Wade was upheld fifty years ago, America has killed more fetuses in the womb than any other civilized nation on earth. A woman's choice begins with the decision to have unprotected sex, not when she doesn't like the consequences of an unwanted pregnancy after the fact of conception. There are exceptions that are attempted to be carved out of laws prohibiting abortion, but those laws will now be written by the individual states going forward. 

This legal concept of "states rights" is embedded in the concept of "federalism" as defined by our Founding Fathers. I have written about it extensively in the past. They held that the federal government should only be granted limited powers, while reserving to the states the broader powers that would assure the governed should have a larger voice in the local government closest to them. We must reject the loose and inflammatory rhetoric that will ramp up this summer, and anchor our public debate to the underlying core principles written in the Constitution. That is the path the Supreme Court has opted to follow, and I endorse their leadership.

The key elements of the majority opinion, in my view are these:

We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (internal quotation marks omitted). . .

It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. “The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.” Casey, 505 U. S., at 979 (Scalia, J., concurring in judgment in part and dissenting in part). That is what the Constitution and the rule of law demand.

You can read the entire text of the opinion here.

The Church of Jesus Christ of Latter-day Saints believes in the sanctity of human life. Therefore, the Church opposes elective abortion for personal or social convenience, and counsels its members not to submit to, perform, encourage, pay for, or arrange for such abortions.

The Church allows for possible exceptions for its members when:

• Pregnancy results from rape or incest, or
• A competent physician determines that the life or health of the mother is in serious jeopardy, or
• A competent physician determines that the fetus has severe defects that will not allow the baby to survive beyond birth.

Even these exceptions do not automatically justify abortion. Abortion is a most serious matter. It should be considered only after the persons responsible have received confirmation through prayer. Members may counsel with their bishops as part of this process.

The Church’s position on this matter remains unchanged. As states work to enact laws related to abortion, Church members may appropriately choose to participate in efforts to protect life and to preserve religious liberty.

2021 - The Road Ahead

 From the moment he took the office, President Donald J. Trump has been a lightning rod for controversy, confusion, vindictive lashing out, and abhorrent behavior of every kind imaginable. Now, thankfully, his era in American politics has mercifully come to an end. It ended the way it began in total chaos and a climatic storming of the Capitol chambers in a failed attempt to overturn the outcome of the election. Did Trump have a hand in rousing the crowd of protestors ahead of the Electoral College vote tally? Well, you can be the judge of that, but for the first time in our nation's history a POTUS has been impeached a second time by the House of Representatives, and even at this late date, only days before his term expires, Donald J. Trump's legacy has a stain on it that will be impossible to remove.

Refusing counsel from everyone, Trump has resoundingly refused to even attend the inauguration ceremonies for his successor, Joe Biden, the winner of the 2020 presidential election. He finally conceded the election, but only when the Electoral College vote was completed. But he has refused to acknowledge his role in inciting the crowd assembled outside the Capitol on the day of the Electoral College vote count. He apparently tongue-lashed his Vice-President Mike Pence that morning, instructing him to "either be a patriot or a pussy." Pence's role in the Electoral College by Constitutional mandate is simply to preside over the vote count and then declare a winner. He had no authority to do anything else despite Trump's little boy tantrum. Pence was the patriot here, not Trump.

The prognosticators of doom and gloom have already begun their predictable tirade of "end of times" analysis concerning Joseph Biden's election. Some will continue to assert the claims of an illegitimate presidency based upon no evidence from Trump's lawyers in numerous court challenges to the election results. Others will assert the nation will fall apart after the failed "coup attempt" supported by Trump supporters. Biden's policy shifts will no doubt be real in an attempt to reverse Trump's. I've read the Republican Party in America will now cease to exist. All of these bold predictions can find equal and opposite counterparts in the years when George W. Bush won, and Trump upended political punditry by winning. The more things change, the more they remain the same, it would appear to me. The one constant for me is that America has not successfully committed suicide - yet.

The road ahead for us in 2021 will continue to be a battle for the hearts and minds of America. However, most hearts and minds have already been made up, and few will change their deepest-held beliefs. It remains to be seen if there are politicians who can tap into the conventional wisdom of Americans. Joe Biden will at least make a show of attempting to interpret his victory in November as reflecting the will of America. He will have both houses of Congress in his camp, just as Barack Obama did when he began his two-term presidency. Few, however, have been able to master the diversity of America. Most new presidents when they take office, pledge to reach across the aisle, heal the divide and work for harmony and unanimity of feelings. Most transitions from one party to the other are carried off without insurrection, though agitators would have it otherwise.  

2021 will also be a year when scientific breakthroughs in vaccine production will in time eradicate the persistent COVID-19 virus if enough Americans agree to take the vaccine when it is offered. Right now there seems to be a much larger demand for the vaccine than there is adequate supply. That's the right trend if the supply and distribution can keep up. The distribution of the vaccines will be problematic, because the vaccines will be administered by the government. In Utah it is being handled through the county health departments. For people 70+ years of age like me, it means expressing interest in a pre-appointment email registration for the vaccine, and the roll-out will happen over the next two months. We are being told to watch our email inbox for a sign-up opportunity. Already we are hearing government leaders in Utah pleading for patience as they figure out how to match the supply with the demand. Anytime we turn the science over to the government it seems there will be a breakdown - bet on it. So far science gets an A, government gets a C-, but guess who will be at the front of the line taking credit for the eventual success. Betcha I know the answer to that one. The doctors will be elbowed out of line by the politicians clamoring for recognition and credit.

Speaking of diversity in America, Senator Mike Lee (R-UT) offered an opinion piece recently in the Deseret News entitled "The Union and the Constitution Forever." He insists there is good news in our diversity:

"The good news is, we already have a proven way to achieve this goal. The United States has always been diverse. Our Constitutional framework was specifically written for a regionally, culturally, economically and religiously diverse nation. The Constitution’s checks and balances and separated powers simultaneously empower political majorities while protecting political minorities and, most of all, individual rights.

"America’s ability to make our diversity a strength is part of what makes us the greatest nation on earth. Our job is to make sure our diversity pulls us together instead of pulling us apart.

"Given America’s wide diversity, political issues decided at the federal level are by their nature going to be the most divisive. People in the East and the West, on the coasts and in the interior, in rural and urban areas — to say nothing of “red” and “blue” states — are always going to see the world differently."

Lee concludes that the way the Founders envisioned handling diversity was not to eradicate it but to embrace it, channel it and balance it so that tyranny never asserts itself within our borders. We hear accusations of tyranny from time to time, and it may be true some would attempt to impose it, but so far America has resisted being told what to do by dictators. Just take as an example the roll out of the COVID-19 vaccine. Some are still insisting that this virus is someone in China's idea of controlling the masses, and that the government conspiracy is what is keeping us all in check. They rise up in opposition to mask wearing mandates and business regulation to control the spread of the virus. Resistance for the sake of resistance regardless of reason and common sense seems to be their cry.

"This isn’t about the size of the federal government — the federal government is going to remain huge for a long time to come. Rather, it’s about the need for national consensus to validate federal policy. 51%-49% issues are controversial, by their nature. Some issues — like national security or immigration — by their nature must be decided at the federal level, no matter how controversial they are. But most issues — from education to welfare to health care to housing to infrastructure — really can be decided at lower, less divided, levels of government.

"Blue states can be as blue as they want; red and purple states can go their way too. And all Americans — across the country and across the political spectrum — would be happier not to be in a constant zero-sum battle against the other party on every single issue under the sun. The founders called this approach 'federalism.' Philosophers call it 'subsidiarity.'

"To me, it’s the only realistic way to restore trust in our public institutions, detoxify our national discourse and heal some of the wounds of our current divisions."

It's not too complicated, folks. You let the federal government do what it does best on the big issues like immigration and national security, and you let the states, cities and counties do what they do best on the local issues in the red and blue states. By design, those outcomes at the local level will be better dealt with closer to the people. We've strayed from the principles envisioned in federalism, and it's time to get back to those principles to tamp down the angst at the federal level.

Trump, it turns out, was little more than an agitator, pitting us against one another for four long years. Yes, he did some good things, balancing the SCOTUS for one, but let's see if Biden can do a better job of following the Lee model than Trump ever did.

Federalism And Why It Matters To You

I've been reading a lot of American history this last year. The Federalist Papers are most revealing, along with other writings of our founders. The term "federalism" is one of those slippery terms bandied about in political rhetoric today needing a clear definition if we are to understand why it is relevant today.


Washington at Valley Forge

For forty-five years George Washington gave himself to his country. No one deserves the title "Father of Our Country," more than he. There was an overriding concern, however, that he was still fighting until the day he left office.

Throughout his presidency he was grieved by all the wrangling between the two predominant parties of his day -- the Federalists and the Republicans. He was usually successful in standing above the fray and warned against the divisions infused by the parties into the American fabric at the time, fearing dissolution of the union he had forged so diligently. Here's a sample of his effort to warn his countrymen "in the most solemn manner against the baneful effects of the spirit of party. . . The spirit unfortunately, is inseparable from our nature, having its root in the strongest passions of the human mind. . .

"The alternate domination of one faction over another sharpened by the spirit of revenge natural to party dissension. . . is itself a frightful despotism. . . A fire not to be quenched, it demands a uniform vigilance to prevent its bursting into a flame, lest, instead of warming, it should consume."

We are close to that place, it would seem, where Washington's warning is near fulfillment. He suggested the antidote was morality in government. From his farewell address, we are advised:

"Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism who should labor to subvert these great pillars of human happiness - these firmest props of the duties of men and citizens. The mere politician, equally with the pious man, ought to respect and to cherish them. A volume could not trace all their connections with private and public felicity. Let it simply be asked, Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths which are the instruments of investigation in courts of justice? And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle."

One searches in vain today for such wisdom. His farewell address was not given as a speech at all. It was drafted first, then sent to his friends, Alexander Hamilton and James Madison, for polishing. It was dated September 17, 1796, and subsequently printed two days later in Philadelphia's American Daily Advertiser. He offered it he said, as the parting counsel from "an old and affectionate friend."

Thomas Jefferson

As the new nation under Washington took shape two polarizing points of view emerged. Thomas Jefferson's followers called themselves Republicans. They stood for a true republic of the people. Alexander Hamilton disciples called themselves Federalists, seeking to strengthen the federal Union. Those two simple ideas are the origins of our how the country became divided into two predominant points of view on the role of the federal government. Hamilton deeply believed only a strong national government could rule effectively, and was advocating the idea the common man was incapable of self-rule. Jefferson was a strong proponent of states' rights, while Hamilton was seeking an ever-stronger central government.



Alexander Hamilton

 Before their lives were over, Jefferson and Hamilton became bitter enemies. Each accused the other of trying to destroy the country. The central idea dividing them? Hamilton had some "radical ideas" about fiscal policies. Jefferson saw the establishment of a national bank as simply a way to enrich the few money men behind it, and everything else Hamilton proposed was viewed with the same skepticism by Jefferson, who saw Hamilton's financial practices as harmful to the poor and destructive to the nation's long-term well-being.

Hamilton countered that his policies were essential to a strong national economy. He did not deny a few would be enriched, but saw that outcome as the necessary step to a thriving economy where everyone could become wealthier.

The differences ran deep, and beyond policy they became implacable personal enemies even though Washington repeatedly tried to reconcile them to each other without success. Jefferson finally resigned as Secretary of State at the end of 1793, and a year later Hamilton quit as Secretary of the Treasury.

The core issues separating these two powerful individuals then persist today. The Constitution was established to create two tiers of governing -- one at the federal level, the other at the state level. This was called "federalism," a shared role for each.

Federalism in the United States is still evolving. It attempts to define the proper relationship between state governments and the federal government. American government has evolved from a system of dual federalism to one of associative federalism. In "Federalist No. 46," James Madison asserted that the states and national government "are in fact but different agents and trustees of the people, constituted with different powers." Alexander Hamilton, writing in "Federalist No. 28," suggested that both levels of government would exercise authority to the citizens' benefit: "If their [the peoples'] rights are invaded by either, they can make use of the other as the instrument of redress."

The states established the first level of governance to be formed in this country. Their pre-eminent existence, some would argue today, give them "more rights" than the specific and limited "enumerated powers" spelled out in the Constitution. These include the right to levy taxes, declare war, and regulate interstate and foreign commerce. Also, the "Necessary and Proper Clause" gives the federal government the "implied power" to pass any law "necessary and proper" for the execution of its express powers.

These arguments are the very arguments one hears today in the ongoing attempts to reform health care and other transformative issues. The core issue is shall the states or the federal government be the instrument to decide for the people? Jefferson would have argued for the states and Hamilton would have sided with the federal government.

Powers that the Constitution does not delegate to the federal government or forbid to the states, the "reserved powers," are reserved to the people or the states under the Constitution. Jefferson said, "That government that governs best is closest to the people." Over time, however, the power delegated to the federal government was significantly expanded by the Supreme Court decision in McCulloch v. Maryland (1819), subsequent amendments to the Constitution following the Civil War, and by some later amendments. The overall claim of the Civil War, that the states were legally subject to the final dictates of the federal government, had the effect of deferring to a strong federal government in the evolution of federalism and how it is defined today.

The old Hamiltonian Federalist party in the United States was finally dissolved in 1824. They were heavily opposed by the Democratic-Republicans, which included powerful figures such as Thomas Jefferson. The Democratic-Republicans mainly believed:

• The Legislative had too much power (mainly because of the Necessary and Proper Clause) and that they were unchecked.
• The Executive branch had too much power, and that there was no check on him. A dictator would arise.
• A bill of rights for the people should be coupled with the Constitution to prevent a dictator from exploiting citizens. The threat then, as always, is that the Executive could become a dictator.

The Federalists, on the other hand, argued it was impossible to list all the rights, and those that were not listed could be easily overlooked because they were not in the official bill of rights. Rather, rights in specific cases were to be decided by the judicial system of courts.

A larger role and influence for the federal government, however, continued to emerge decades after the Civil War. The reasons included the need to regulate businesses and industries that span state borders, attempts to secure civil rights, and the provision of social services. The federal government acquired no substantial new powers until the acceptance by the Supreme Court of the Sherman Anti-Trust Act in State of Minnesota v. Northern Securities Company.

It is the belief of many today (myself included) that the federal government has grown beyond the bounds permitted by the express and limited powers granted in the Constitution. Opponents to that view think they find some legal latitude among the express powers, such as the Commerce Clause. The Commerce Clause is used by Congress to justify certain federal laws, but its applicability has been narrowing in recent years by Supreme Court rulings.

"Dual federalism" suggests the federal government and the state governments are co-equals, each sovereign. In this theory, parts of the Constitution are interpreted narrowly, such as the Tenth Amendment, the Supremacy Clause, the Necessary and Proper Clause, and the Commerce Clause. Under a narrow interpretation, the federal government has jurisdiction only if the Constitution clearly grants it. In this case, there is a large group of powers belonging to the states or the people, and the federal government is limited to only those powers explicitly listed in the Constitution.

To summarize:

We face "ominous challenges" as a nation today. Here's a BYU professor who suggests there are at least five requiring immediate attention by the 112th Congress. There was little in Obama's SOTU address last week to suggest he will take a leadership role in tackling those clear and present dangers lurking on the horizon. He played a large role in creating those challenges with the 111th Congress. It appears, instead, he will play politics as usual, hoping the Republicans by reducing spending make life so miserable for Americans he can ride a wave of displeasure into a second term in 2012, and last long enough without specifically addressing the issues that he might still be popular enough with the people by then to be re-elected. His re-election campaign is launching into high gear now and he'll be on the stump between now and then doing what he does best -- talking and talking and talking and talking.

The arguments debating the meaning of "federalism" today are framed around the concept of "dual federalism," the shared powers and the evolving roles of the federal government and the states. It is my belief it is absolutely essential for Americans to become engaged in the debate using the proper definitions and advocating for states' rights as opposed to further expansion of the role of the federal government. The only question remaining is whether it is too late to finally rein it in. It seems both political parties have expanded federal government, now the question is which one will shrink it, if it can really be "shrunk" at all.

Last week in his press conference following his State of the State address, Governor Gary Herbert here in Utah was mystified by the unilateral imposition of Obamacare upon the states without even so much as a consult with the governors of the various states over the last two years when it was rammed down their throats, and he signaled his adamant opposition to the taking of any more Utah land for federal wilderness and monument designations. The states are on the move to reassert their claims against the monolithic federalism they see as a threat to our existence.

Half the fifty states' attorneys general are now involved in lawsuits to challenge the constitutionality of Obamacare, and the border states of Arizona and Texas are imposing their wills against the federal government's inaction to control the borders.

Henry David Thoreau asserted, though it is often attributed to either Thomas Paine or Thomas Jefferson, "That government is best that governs least."

The polar opposite positions held by Hamilton and Jefferson have played out two hundred plus years later exactly as Hamilton and Jefferson framed the original debate then, and the question is still not settled -- far from it.

A return to Washington's thoughts from his farewell address is sagacious wisdom for America today: "Reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle."

Beware of those who would take God out of this equation.