By Tom Moran | Star-Ledger Editorial Board
In 1972, the year before Roe v. Wade was decided, 130,000 American women obtained illegal or self-induced abortions, according to the Centers for Disease Control. They risked infections, bleeding, and sterility. Some of them died.
We are not going back to that, no matter what this radical Supreme Court says, because the landscape has changed. There are pills now that can safely do the job, and now account for more than half of all abortions. That changes things.
But what is to be done about states, like Texas, that are building the legal machinery to prosecute those who help Texan women obtain these pills, often after online consultations? Are women in Texas, especially poor women, headed back to 1972?
The answer must be no. These laws need to be broken, come what may. This Court has lost its legitimacy and must be defied, outright. If that means people of conscience need to smuggle pills into red states, to knock down the walls this Court has helped to build, then so be it.
Crossing this threshold can be justified only on rare occasions in a democracy. The rule of law can’t survive long if citizens can casually pick and choose which laws they want to obey. And in a democracy, where citizens are vested with powers to peacefully challenge unjust laws, the burden is higher.
But the discussion doesn’t end there.
What if a majority imposes an unjust law on a minority, as in Southern states during the Civil Rights Movement? Defiance is justified not only on moral grounds, but as a political tactic. The defiance of unjust laws awoke the conscience of decent people and led this country to higher ground.
How about the draft laws during the Vietnam War? Was Muhammad Ali wrong when he refused to take part in that unjust killing, even at the cost of imprisonment?
Or consider the 1850 Fugitive Slave Act, which required that marshals in Northern states help return escaped slaves and set fines for anyone who harbored an escaped slave. Was defiance not a moral imperative?
The question of exactly when lawbreaking is justified is as old as Socrates and has no easy answer. But each instance above shows that it’s not a simple matter of asserting that we must obey the law at all times, even in a democracy like ours.
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In this case, defiance is justified by the unfair tactics Republicans used to build this Supreme Court majority, along with the radical nature of this decision, and the urgency facing woman in states like Texas.
Start with the Senate’s refusal to consider President Obama’s nomination of Merrick Garland in 2016, justified by the bizarre reasoning that presidents should not be allowed to make an appointing during their final year in office. When President Trump nominated Amy Coney Barrett in 2020, the rules somehow changed and the GOP Senate confirmed her two weeks before the election.
History will mark that hypocrisy and bad faith, an act that gave this radical Court the final vote it needed to overturn Roe.
That sin was compounded by the radical nature of the decision drafted by Justice Samuel Alito. This was an unrestrained partisan power play by the Court’s 5-vote majority, which showed a disregard for precedent that was offensive even to the conservative Chief Justice John Roberts, who dissented.
Alito framed his ruling as a win for democracy, since abortion laws will now be settled by states through a democratic process, rather than by judicial fiat through the 14th Amendment. But by moving this to the political arena, he erases the Constitutional protection for abortion, and opens a path for this Court to continue its rampage by striking down other protections that rely on the same amendment.
In a concurring opinion, Justice Clarence Thomas argues that the Court should free states to revive bans on birth control and gay marriage, based on the same logic. So much for precedent. So much for restraint.
Adding to this insult is the Court’s defiance of public opinion, based not on a higher call to justice, but on the archaic idea that we should look to 1868, when the 14th Amendment was adopted, to discern its meaning today. That was a time when women couldn’t vote, yet this Court relies on the sensibilities of that half-democracy to rewrite the rules that should apply in 2022. It’s a bizarre and dangerous standard to justify rolling back established Constitutional rights.
States today are scrambling to draft new laws on abortion, including bans on the use of medications and their transport across state borders. It will take time to sort out.
But in the end, one way or another, we need to rescue women who need abortions and have the misfortune to live in a state that denies that right. If that means breaking the law, and smuggling these pills at scale, so be it.
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