The Alito drafted Supreme Court decision to reverse Roe vs. Wade, assuming it becomes final, will be what defines Trump’s enduring legacy to America. Donald Trump will have left his imprint on America and American history for decades, perhaps for generations to come. Some of Trump’s policies will endure, just as some have been, and will be, jettisoned or tempered. Many people will cheer the reversal of Roe. Many more will not.
Assuming Chief Justice John Roberts, who gives great weight to established legal precedent stood with the minority, the remaining bloc of five Republican Justices who voted to negate a half-century of judicial precedent regarding a woman’s now limited agency over her own body is, overwhelmingly, Donald Trump’s creation. That is, three of the five deciding justices were appointed by former President Trump. When the Alito draft ruling becomes final, Donald Trump’s enduring historical legacy will have been defined. Many Americans are delighted. Many are appalled. Going forward, state legislatures will determine what decisions a woman can and cannot make concerning her own body when it comes to reproduction. The Alito-drafted decision represents Donald Trump’s most significant enduring influence on the nation.
Administration policies may or may not endure and, therefore, may or may not constitute a President’s historical legacy. One administration can, and often does, reverse a prior administration’s policies, just as one congress can and often does reverse another congress’s legislative action. Supreme Court decisions, however, are far less subject to administrative or congressional tinkering. They are often foundational, more like unyielding and impervious cement rather than the crazy glue that often characterizes many executive branch or congressional initiatives.
Much of Trump’s influence has been wrong-headed and quite negative, and I have addressed that reality in numerous columns to the chagrin of some of my readers. Other Trump initiatives have been quite positive, and I have recognized that in these columns to the chagrin of other readers. The Abraham Accords, Criminal Justice Reform, and moving the American Embassy in Israel to Jerusalem, where it belongs, were correct and long overdue. Incentivizing the repatriation to the United States of corporate earnings held abroad was also the right thing to do. So was committing to the withdrawal of US forces from Afghanistan. This weekly column agreed with Trump’s decision to pull out of the Iran nuclear accord because the deal provided a 10-to-12-year glide path to Iranian nuclear arms development. These Trump actions were policy initiatives that, except for US withdrawal from Afghanistan, may or may not be embraced by future administrations. Future administrations, however, can do little about Supreme Court interpretations of the Constitution of the United States.
I have read the entire Alito draft opinion. It is well written, and while I am not a lawyer, I believe the Alito draft makes a strong argument supporting a questionable judgment. In chapter and verse, Alito cites precedent in English law with respect to prohibiting abortion dating back to the early 17th century. By contrast, he hammers home that there was no judgment by our high court allowing abortion in the United States until Roe in 1973. Long standing tradition and practice carries a lot of weight with the court.
Thus, we might also look to laws in the United States well into the 19th century that codified a man’s right to enforce domestic discipline by caning his wife as long as the cane or whip or stick was no wider than the ruling judge’s thumb. That was the rule of thumb in Mississippi until 1824. In fact, it wasn’t until well into the 20th century that wife-beating was illegal in all states in America. And true, as Justice Alito would argue, such abuse is criminal in every state because every state legislature has made wife-beating illegal. That it took state legislatures well over a century to make wife beating illegal in America is not a testament to anything other than the tortured path justice often treads.
Abortion, a woman’s decision to terminate a pregnancy is, of course, a serious matter. It is also a highly personal matter. To determine that the decision to terminate a pregnancy isn’t a personal matter but rather a matter for state legislatures to decide raises many issues regarding what is and what is not the public’s business. To argue that politicians in state legislatures determine whether women who have been raped and impregnated by their rapists may or may not terminate a pregnancy, or children who have been impregnated by their father or brother may or may not be required to carry the pregnancy to term, or whether or not a pregnancy that in-utero diagnosis determines is, or will be, seriously or fatally impaired must be carried to term, catapults highly personal private matters, into gravely intrusive public matters.
Politicians can cavalierly declare, as they have, that there will be no exceptions for rape or incest or congenital anomalies and, thereby, wash their hands of any extenuating circumstances, no matter the agony with which families are then left to contend. To many anti-abortion activists, the word zygote or fetus doesn’t exist. Every fertilized egg cell, every fetus, microscopic or the size of a pinhead or a grain of rice, is simply an unborn child. A microscopic, fertilized egg cell determined to be seriously and even fatally impaired has become the purview of the state legislature and not the family or the pregnant woman. Pregnant women and their spouses are mere bystanders when this issue becomes a political circus.
The Alito draft also calls into question the entire science of in vitro fertilization. In vitro fertilization enables couples genetically at risk for producing a pregnancy that could end in a tragic outcome to screen out (discard) before implantation in the uterus a single-cell zygote at high risk for severe disease. Thus, allowing an otherwise healthy fertilized zygote to be implanted and, thereby, to progress to full pregnancy.
The ninth amendment to the United States Constitution is straight forward. “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” The Alito draft casts in concrete that a woman’s decision to terminate a pregnancy even in the case of rape or incest or nearly all of the most tragic congenital anomalies is not one of those unenumerated rights. No, those decisions Alito and four other justices consign to the various individual state legislatures.
It is the Alito opinion and the Trump legacy.