3 years ago

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Roe v. Wade – another round
By Terry A. Hurlbut
Reaction to the unprecedented leak (or forgery) of Samuel A. Alito’s opinion that the court must overrule Roe v. Wade continues to pour in. No one’s talking about whether the Court might force Alito to recuse himself, then vote 4-4 to keep Roe. Instead everyone’s talking about trigger laws on one hand, and codifying abortion on demand on the other. Even then, most people are ignoring the wider implications of the Great Sortation.
Most now expect Roe v. Wade to fall
Reaction has come in from NPR, CNN, the Texas Tribune, and even the BBC. It’s worth also citing Erick-Woods Erickson, who has some insight on what this will mean for Midterms. But it’s also worth noting the irony in Erickson’s reaction, which irony derives from his Never-Trumpism.
Almost everyone weighing in on the leaked draft, seems to accept it as authentic. That same consensus also suspects a “progressive law clerk,” perhaps a clerk for Justice Sonia Sotomayor. This clerk, according to this theory, leaked Alito’s opinion to incite “progressive” people into more RANTING AND RAVING AND SCREAMING AT THE TOP OF THEIR LUNGS, if not blood-and-flames riots, in a desperate attempt to sway Justices Barrett, Gorsuch, and Kavanaugh away from an opinion to overturn Roe.
Furthermore, people are propounding a theory to explain the other part of the leak: how the Justices will vote. Chief Justice Roberts, according to this theory, would vote to reverse the lower court on the case at hand. That case, of course, is Dobbs v. Jackson Women’s Health Organization. These watchers expect Roberts to let the Mississippi Gestational Age Act stand but not because Roe is not valid. Rather, he will ask who’s to say that a fifteen-week unborn child is not viable. With improvements in modern medicine, such an unborn child could be viable, if not today, then soon.
In that case, the vote would not really be 5-4. It would be 6-3 to uphold the Mississippi law but 5-4 to reverse Roe.
What should happen, and what will happen
Erickson has the most comprehensive overview of what will, and should, happen next. Like the rest, he assumes the draft opinion against Roe v. Wade is authentic. He recommends that Chief Justice Roberts:
1. Lay aside any objection he still has to overturning Roe v. Wade, and
2. Order a full investigation to find out who leaked that draft.
CNAV would point out that, at minimum, some Justice rates a reprimand for not locking the door to chambers. And if the investigation finds that a clerk for Justice Sotomayor (or Kagan or Breyer) leaked the draft, that Justice:
1. Has been phenomenally careless in the selection of law clerks, or
2. Has committed an impeachable offense, by ordering the leak.
In any event, the Court cannot let this go. If that draft is authentic, then the leak of it is the most serious possible breach of Court security.
Separately, CNN notes that Democrats want to remove the filibuster in the Senate and pass a measure codifying Roe. But they have two problems. As Erickson points out, had the Democrats never touched the filibuster, we would not even be at this pass. We would not have Justices Kavanaugh or Barrett and perhaps not even Justice Gorsuch. Furthermore, if Congress did codify Roe in this session, the next Congress would reverse that. If Democrats want a Midterms issue to galvanize Republicans, let them take one step in that direction. CNAV dares and defies them.
Roe v. Wade, triggers, and codifications
Erickson points out something else: abortion in the United States will change little. No federal law on abortion even existed before Roe v. Wade. And unless the Democrats pull any foolishness in the Senate, no federal law will exist afterward. Instead, “trigger laws” will come into force and effect after the decision, usually within thirty days. (Texas has one. If Roe goes, abortion goes with it in Texas – from conception.) Other states will codify a “right” to abortion, as many have already done.
Today in most pro-life States, few abortion clinics still stand. With the trigger laws, those clinics will close.
Nor will this materially affect Midterms. The debate on the trigger laws, and on private-enforcement laws like the Texas Heartbeat Act, has already galvanized abortion supporters. They will vote Democratic as before – and abortion opponents will vote Republican as before. Nor will pro-life people slack off. They’ve heard the threats to codify abortion in federal law. They also know who changed the Court critically to make Roe go away. That honor goes to Donald J. Trump. (And here lies Erickson’s other problem. Yesterday he bitterly said he could never support Trump because Trump treated love and marriage cavalierly. But today he had to thank Trump. It must have made him come near to choking to type that.)
Toward the Great Sortation
We now turn to the one consequence about which few if any care to speculate: the Great Sortation. The Great Sortation refers, not only to different States having different laws, but also to people caring enough about the laws under which they live to move to States having laws they like. The license to kill that codified abortion represents, will push people to move as no other issue will. Citigroup, for instance, will find that paying travel expenses won’t be enough. Their employees will insist on choosing their States for their laws. The only ones who will have less leverage to enforce such a preference, will be executive officers and sales people. And what goes for Citigroup will go for other interstate employers.
Even now, overturning Roe v. Wade might not affect federal elections, but will affect State elections. This will hold especially wherever one-party control does not yet exist. In one or two election cycles, it will.
Then the moving-truck companies will enjoy balanced, two-way traffic for their equipment. Except for rare pockets of leftist thought (like Travis County, Texas), red States will become uniformly red. Leftists will simply move out. Don’t expect pockets of red in seas of blue, however. Instead, expect conservatives to move to red States, if only to have congenial neighbors.
In a generation, total fertility rates will ensure solid, conservative, and civilizational majorities, in a majority of States and at the federal level. If that happens, abortion might even go away forever.