The Democrats May Have Made a Tactical Error

The Democrats May Have Made a Tactical Error
Fencing surrounds the Supreme Court in Washington on May 2, 2022. (Kevin Dietsch/Getty Images)
Conrad Black

The Democrats clearly think the leaked draft of a decision in Dobbs v. Jackson Women’s Health overturning Roe v. Wade on abortion matters has miraculously delivered them again, as they were by the COVID-19 crisis two years ago after the failure of the Trump–Russia collusion fraud and the Ukraine telephone-call impeachment fiasco.

That they're desperate for another such miracle is understandable, and that they would imagine that it might have arrived is also understandable given that they're involuntarily climbing the electoral gallows. But this decision, if confirmed, won’t save them.

Roe v. Wade was a poor judgment and, in fact, did an injustice to the pro-choice cause. It found that the issue is a woman's privacy and her right to determine what happens to and within her body. The real issue is: When does the unborn attain the rights of a person? The answer to that question may plausibly be argued to be any time from conception to delivery at end of term, but that's the issue.

Unless it's a case of nonconsensual sex, the primacy of a woman's absolute right to determine what happens to and within her own body is mitigated by her assent to an act that can lead to conception.

The view of most Americans and most people in countries with any significant remaining Christian tradition is that the unborn may be deemed to accede to the basic right to survival of live human beings when they've developed to the point where they would likely survive childbirth. Of course, abortion offends a great many people, but most advanced societies recognize that abortions do occur, whatever the law provides, and that it's best that those that do occur are conducted in the best medical circumstances and that the women who undergo them aren't stigmatized or traumatized by the process.

Those who believe that an abortion is an internal matter in which no one has any right to an opinion except the woman who seeks the abortion, no matter at what stage of pregnancy it occurs, are offended that there are any limits at all on a woman's right to an abortion up to and including partial-birth abortion. And the more energetic advocates of what's called “choice” (but is generally abortion for abortion’s sake with no serious consideration of the alternative), are naturally disappointed by any compromise to an unlimited right to abort.

The Roe v. Wade finding (in 1973) of a Constitutional right to an abortion took no account of the rights of the unborn, and for that reason, in particular, it was always vulnerable. The supporters of the finding overlook the limitations of the rationale for the decision and placed all their bets on their ability to assure a permanent majority on the Supreme Court for those who shared their opinion on this subject. We see now but could have foreseen from the start, as many did, that this was a mistake.

Public opinion has moved substantially since that decision was rendered as more sophisticated ultrasound and other analyses have revealed the efforts of the unborn to avoid abortion vacuums and other devices. The often brazen conduct of the abortion industry, in aggressively pushing abortion as the solution to all pregnancies that aren't altogether welcome and in the profitable disposal of the organs of aborted fetuses, also contributed in the United States to a narrowing of opinion on the issue and the emergence of a prevalent view that abortion on demand at the public's expense was undesirable public policy.

Since the illegal leak of the draft opinion approved tentatively by five justices of the Supreme Court overturning Roe v. Wade, there has been a good deal of attention paid to opinions expressed by the late Supreme Court Justice Ruth Bader Ginsburg criticizing that decision before and after it was rendered. She felt that it was a mistake to invoke the right to privacy to overrule laws banning abortions in dozens of states, and that the decision would have been better based on the Constitution's equal protection clause. There was then and remains now considerable dissent to the Ginsburg view also, as when the conceptual act has been assented to by the woman seeking the abortion, the argument on behalf of the rights of the unborn becomes seriously persuasive.

The Democrats effectively placed all their bets on what is more of an anti-life than a pro-choice position, which holds that the extinction of the fetus has no more moral significance than the disposal of a dishrag. The decision came in as there was a tremendous emphasis on the just need for recognition of vastly greater rights for women in employment, education, and marriage, and a facilitation of abortions was a sensible ingredient in that elimination of the long and fundamentally unjust legal subordinacy of women to men.

But many could see that it was a poorly reasoned judgment and was a hack job from the beginning.

The Democrats won't be able to invoke the Supreme Court decision on abortion to distract the public from the failure of the administration and Congress to cope adequately with the disaster on the southern border, rampaging inflation, skyrocketing crime rates, complete incoherence over COVID-19, and recurring one-off disasters like Afghanistan. Their only argument is that all of the justices who have subscribed to the leaked draft are Republican appointees, albeit from three different Republican presidents (both Bushes and Trump). The draft decision doesn't ban abortions; it refers the matter to the states, which is more logically the place where it should be resolved, and many states have already set down reasonable guidelines for abortions, while many others would clearly ban abortions if it were legal to do so.

By leaping so evidently at this perceived opportunity for turning the political tide, the Democrats made a further tactical error. The theft and publication of the draft judgment is universally seen to be a criminal act and will rankle with the public a great deal more than did the appalling leaks conducted by enemies within the early Trump White House. The failure of the White House to criticize demonstrations at the homes of the Supreme Court justice who subscribed to the draft opinion is a disgrace that verges on public approval of the harassment in their homes of the justices and their families, including minor children, in an attempt at outright intimidation. The failure to condemn harassment of Roman Catholic worshippers at their churches will also offend most Americans.

This is a coarsening of public life and a debasement of the judiciary that the Democrats won't be able to justify.

Almost everyone accepts that religion, like sex, is a personal matter and that adults should be free to do whatever they wish as long as they're discrete, consensual, and don't affront public sensibilities. But the highly publicized Roman Catholic churchgoing of the president will be hard to square with his apparent nonchalance about his partisans trying to intimidate Supreme Court justices and their families in their homes and harass his co-religionists at their houses of worship.

On the Republican side, Senate leader Mitch McConnell (R-Ky.) should retract the suggestion he allegedly made to USA Today that a national ban on abortion in the Congress could occur; he knows this to be impossible, legally and politically.

Abortion is not being banned, the Supreme Court is not a partisan organization, the majority of Americans want some limits to abortion, and the majority don't approve of carrying these controversies to the homes and families of the country's highest jurists or to the churches of America.

If the Democrats aren't more careful, this decision, if it's confirmed, and their lawless reaction to it, may cost the Democrats more votes than it gains them, and it won't spare them the trip to the electoral woodshed that their gross incompetence commends.

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.
Conrad Black has been one of Canada’s most prominent financiers for 40 years and was one of the leading newspaper publishers in the world. He’s the author of authoritative biographies of Franklin D. Roosevelt and Richard Nixon, and, most recently, “Donald J. Trump: A President Like No Other,” which has been republished in updated form. Follow Conrad Black with Bill Bennett and Victor Davis Hanson on their podcast Scholars and Sense.
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