Opinion

If You Really Want Choice, Confirm Brett Kavanaugh

Congratulations to Judge Brett Kavanaugh, President Trump’s nominee to replace retiring Supreme Court Justice Anthony Kennedy. He now faces the same old chorus from the Democrats and their Leftist allies. Chuck Schumer issued a press release within minutes of the announcement, calling on him not to overturn Roe v. Wade.

Even more prompt than Senator Schumer, however, were some college students in New York. They went beyond parody last week in a series of interviews conducted by Campus Reform. Student after student opined on camera that they opposed the President’s Supreme Court nominee, days before Kavanaugh had been announced. The comments ranged from “I heard he’s a racist” to “He’s just a terrible person,” to “He’s going to outlaw abortion.”

Why Is it Always About Roe v. Wade?

The idea that a woman has a fundamental right to abort her baby is not written in the Constitution. No law authorizing it was passed by the elected representatives of American voters. It was created in 1973 with a decision by the Supreme Court. (Conservatives call that “legislating from the bench.”) The Justices said the right emanated from the shadow of the right to privacy.

Curiously, that right to control over her body invented by Roe v. Wade has never been applied to the right to get high, or to refuse to wear a seat belt or bicycle helmet, or to try experimental medications, or (in 1973) even to drink unpasteurized milk.

But there also is no right to privacy in the Constitution. The Justices in 1973 thought there should have been, so they said the 4th Amendment ban on unreasonable searches and seizures implied a right to privacy. They then decided that the right to privacy itself implied a guarantee that citizens have a right to choose to do anything they want with their own bodies.

So, an implied right to privacy implied in turn the right that a woman could abort a fetus she carries, because it is carried within her body. Curiously, that right to control over her body invented by Roe v. Wade has never been applied to the right to get high, or to refuse to wear a seat belt or bicycle helmet, or to try experimental medications, or (in 1973) even to drink unpasteurized milk. Interestingly, all these are better examples of a choice to control our own bodies than the decision to dismember, scald, or poison the body of an unborn infant.

The Real Choice Is the Will of the People

Feelings about abortion are admittedly complex. Some people believe that life begins at conception, and therefore there is a new life inside a woman’s body, which she has no more right to take than that of a child. Others claim to believe that a baby is not a living being until she is outside her mother’s body. The vast majority of Americans believe that there is a new life inside a woman’s body at some point well before birth.

The American Left decided long ago it was easier to win selected court cases, carefully shepherded through sympathetic trial judges and appeals courts, than to pass laws.

Defenders of Roe v. Wade claim that it gives women a choice. But the constitutional right to choose is the right to vote. Because Roe v. Wade created law from the judicial bench, voters have never had the chance to choose a national public policy. Roe v. Wade deprived them of that choice.

The American Left decided long ago it was easier to win selected court cases, carefully shepherded through sympathetic trial judges and appeals courts, than to pass laws.  They circumvented the legislative process, and had courts overturn laws passed by popular vote, state legislatures, or the Congress. Roe v. Wade was their greatest achievement, because it created new law out of shadows (look up ‘penumbra’ and Roe v. Wade).

Brett Kavanaugh and Judicial Restraint

The real threat to the Left comes from judges who believe in restricting their legal decisions to what the Constitution allows or prohibits. This is called “judicial restraint.” Leftists fear judicial restraint, because it puts lawmaking in the hands of the people, instead of the judges.

Brett Kavanaugh’s belief in judicial restraint will force the choice back to elected officials and the people, where it belongs. But Kavanaugh’s opponents do not trust the American people to choose our laws for ourselves. They want to use the court system to make our laws for us.

They consider themselves the ruling class. “Let the lawyers and activists decide your laws and your futures, little people. Don’t you worry your pretty little heads about such things.”

Let The People Decide

The irony is that we retain our power to choose only if Roe is overturned. Only then do the people have a voice in our laws. And so what if it is overturned? All that means is that the Court will be saying there is no guaranteed right to abortion in the Constitution. If the people want a law legalizing abortion – or any other activity – they can elect members of Congress who will pass one.

Remember also that the court cannot reexamine Roe v. Wade unless a case comes before them. That will take many years of cases working through the lower courts, before reaching the Supreme Court. And Judge Kavanaugh will not vote for his desired outcome – he will evaluate the law on how it conforms to the Constitution.

Stop demonizing Justices, and stop asking them to legislate from the bench. Let the people decide. That is the real right to choose.

The opinions expressed here by contributors are their own and are not the view of OpsLens which seeks to provide a platform for experience-driven commentary on today's trending headlines in the U.S. and around the world. Have a different opinion or something more to add on this topic? Contact us for guidelines on submitting your own experience-driven commentary.
Bart Marcois

Bart Marcois (@bmarcois) was the principal deputy assistant secretary of energy for international affairs during the Bush administration. Additionally, Marcois served as a career foreign service officer with the State Department.

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