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The death of Roe v. Wade: People need to calm down – and get to work

The ruling is not as dramatic as either side thinks, the Court has made for more egregious rulings and Dems need to roll up their sleeves and win more elections
Alabama Democrat Rep. Terri Sewell, alongside other members of the Congressional Black Caucus, speaks before the Senate chambers about their support of voting rights legislation, at the Capitol in Washington, on Jan. 19, 2022. (AP Photo/Amanda Andrade-Rhoades, File)
Alabama Democrat Rep. Terri Sewell, alongside other members of the Congressional Black Caucus, speaks before the Senate chambers about their support of voting rights legislation, at the Capitol in Washington, on Jan. 19, 2022. (AP Photo/Amanda Andrade-Rhoades, File)

The United States Supreme Court overruled Roe v. Wade last week in Dobbs v. Jackson Women’s Health Center. The anti-abortion folk are chortling. The pro-choice people, of whom I am one, are acting as though Dobbs is a horrible tragedy. I disagree. Both camps need to calm down.

Lest the anti-abortion folk get too excited, they might consider the following. According to recent estimates, only about half the states in the United States will outlaw abortion. The other half will include some of the largest states, like New York and California. With so many states making abortions readily available (like most of the Western world), most Americans will be able to travel easily to someplace where abortion is legal. All middle-class and wealthy people will be able to afford a plane ticket to a state where abortion is legal. The burden of the overturning of Roe v. Wade will fall mainly on the poor.

The anti-abortion folks should also remember that attempting to outlaw conduct which most people find acceptable simply does not work. Despite the laws outlawing the possession of cocaine, it is readily available in the United States, especially among the wealthy. Despite the laws outlawing the possession of cocaine, Whitney Houston, among numerous others, died because she took it. Organized criminals, including the cartels in Mexico, have made fortunes selling cocaine.

Prohibiting the possession of alcohol also failed to work. After alcohol was prohibited, speakeasies became numerous. After alcohol was prohibited, the price of alcohol, which could no longer be taxed, actually went down, thereby increasing demand for it. After alcohol was banned, organized crime started making a fortune by selling it illegally.

The anti-abortion folks might also consider that the majority of abortions these days are done with pills, not with surgery. Illegal drugs inducing abortions will sell well on the black market..

I am old enough to remember the pre-Roe v. Wade days. People forget that in those days, pre- and extra-marital marital sex was common. Haight-Ashbury, Woodstock, and the free-love movement were real.

Like the anti-abortion world, the pro-choice world needs to calm down. When Donald Trump was elected President and Ruth Bader Ginsberg died while he was still in office, Roe v. Wade was sure to be overruled. That is the way democracy works: elections matter. When the anti-abortion voted, one of the positions they had a right to expect of their candidate was that the candidate would appoint Supreme Court justices who would vote in favor of positions they supported. Can you imagine a pro-choice Republican getting the Republican nomination for President of the United States?

The same is true for Democrats. Can you imagine either Barack Obama or Hillary Clinton even getting the Democratic nomination had they said that they would appoint justices who would overrule Roe v. Wade? I can’t. If the Democrats want people on the Court who share their legal philosophy, rather than warning that the sky is falling because Roe v. Wade has been overruled, they would do better to roll up their sleeves and win more elections.

There are lots of important issues in this country where the right-wing has been able to thwart progressive causes. That includes disenfranchising people of color, as is going on in state after state. That includes Congress being unable to amend the Voting Rights Act, which the Supreme Court has already gutted. That is the Act that insured that people of color would be permitted to vote, something that they had been unable to do in states like Alabama for hundreds of years. That is the Act for which so many people gave their lives while countless others like John Lewis “gave a little blood.” When one considers all the ways in which right-wing political power threatens progressive causes, the death of Roe v. Wade is insignificant. In my opinion, depriving people of color of their ability to vote is a much more serious problem than what happened to Roe v. Wade.

The real problem is that the right-wing has been able take control of political body after political body from school boards to the United States Senate. Progressives would do much better focusing on remedying that problem rather than wasting their energy lamenting the Supreme Court’s decision overruling Roe v. Wade.

The pro-choice camp also ignores the positive side of Dobbs. Roe v. Wade stands for two principles: 1. That the Constitutional right to privacy is grounded in the 9th Amendment. 2. The right to privacy applies in the context of abortion. Both the anti-abortion people and the majority in Dobbs focus on the second issue. It is much too glib to say that Roe v Wade has been overturned. It is only the second holding that has been overturned, as the Court made absolutely clear. See Dobbs at 66. The right to privacy remains intact. That right can be applied to numerous situations, including the right of same-sex couples to have sex. The right to privacy, a constitutional right that protects all Americans, remains firmly established,

Democracy in the United States is in real danger, as the events of January 6, 2021, demonstrated. Compared to the potential loss of American democracy, the overruling of Roe v. Wade is trivial. So calm down folks and focus on the real problems facing the United States. The overruling of Roe v. Wade is not among them.

About the Author
Before making Aliyah from the United States, I spent over three decades as a lawyer in the United States. My practice involved handling many civil rights cases, including women's- rights cases, in State and Federal courts. I handled numerous constitutional cases for the ACLU and argued one civil rights case in the United States Supreme Court. I chaired the Colorado Supreme Court's Committee on the Rules of Criminal Procedure and served on the Colorado Supreme Court's Civil Rules and Rules of Evidence Committees. Since much of my practice involved the public interest, I became interested in environmental law and worked closely with environmental organizations, including the Environmental Defense Fund (EDF). I was on the Rocky Mountain Board of EDF. I received an award from the Nebraska Sierra Club as a result of winning a huge environmental case that was referred to me by EDF. I also developed significant knowledge of hazardous and radioactive waste disposal. I was involved in a number of law suits concerning waste disposal, including a highly-political one in the United States Supreme Court which involved the disposal of nuclear waste. As I child I was told by my mother, a German, Jewish refugee who fled Nazi Germany, that Israel was a place for her and her child. When I first visited Israel many years later, I understood what she meant. My feeling of belonging in Israel caused me to make Aliyah and Israel my home. Though I am retired now, I have continued my interest in activism and the world in which I find myself.
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