Pro-lifers hope and abortion-supporters fear that the Supreme Court of the United States ("SCOTUS") will reverse Roe v. Wade, returning abortion to the individual states.  Some Democrat states have already indicated that they want to make their states abortion destinations.  There must be a better way to handle things.

By definition, a brilliant constitutional lawyer finds things in the Constitution that no one else has ever discovered.  SCOTUS is replete with decisions based on clauses in the Constitution that have nothing to do with the cases before the Court, but that some brilliant constitutional lawyer has explained to SCOTUS and then convinced the Court that this seeming nothing of a clause is actually something important.  That is brilliant.  This is the kind of lawyer you want on your side when you are accused of treason at Guantanamo.

At the recent SCOTUS hearing on the Mississippi abortion law, prohibiting abortions after 15 weeks, the various brilliant lawyers arguing to overturn the law insisted there is some clause in the 14th Amendment that says abortion is legal.  Further, the Roe decision, they argued, is sacrosanct because it has been in place since 1973.  Women would not be able to function as equals to men without the right to dispose of their babies.  Unbridled sex would be impeded.  What about movies, art, and literature?  A senator from New Hampshire went so far as to threaten that revolution (insurrection?) will follow if Roe is reversed.

Justice Kavanaugh pointed that the Constitution does not address abortion and, therefore, that the Court should be neutral on abortion, neither for nor against.  It follows that the Court should overturn Roe and let the individual states legislate the subject.  This is a popular view among conservative lawyers (because it's legally accurate) and the argument that the solicitor general of Mississippi made before the court.

The larger question is whether SCOTUS is a political institution or an institution that dispassionately and objectively interprets the law.  The Constitution strongly implies that it is the latter.  However, in the view of all the top law schools, the law is subjective and just another area of politics, making any SCOTUS decision just politics as usual.

Biden and his team share the view that the Court is entirely a political entity to be manipulated through highly political appointments and, if possible, packing the Court to arrive at desired outcomes.  Indeed, his is the almost unanimous view of the Democrat party and (sadly) of a number of RINOs, too.

Chief Justice Roberts laughably claims that the court just follows the Constitution without regard to politics.  His own high-profile decisions often appear to be politically driven.  In the Obamacare case, he flatly made up a tax provision not present in the law to justify his favorable decision.  In the Obergefell case (same-sex "marriage") and the Bostock case (holding that the Civil Rights Act of 1964 extends to gay and so-called transgender people, even though neither is mentioned in the act), he sided with those who find previously unknown provisions in the Constitution and in legislation to justify political decisions.  (Justice Gorsuch joined in on that idea.)

Image: Ultrasound on a pregnant woman.  Piqsels.

Unfortunately, revoking Roe would mean continued abortions in the hundreds of thousands, as progressive states would run amok with infanticide not being the limit.  Both California and New York politicians have said they will have their taxpayers fund turning their states into abortion destinations for the women of America.  Those states, and others like them, will become slaughterhouses.

My suggestion is that the Court should do what it's been doing for decades and go beyond the Constitution's explicit language, only this time it should travel politically in a conservative direction.  It should leave Roe in place but return to its roots as a restrictive doctrine.

The original 1973 decision was based on the old idea of trimesters, so the Court supported unlimited abortion only in the first trimester.  Nowadays, as the Mississippi law recognizes, we have a much greater understanding of fetal life and how quickly the fetus is quite obviously a nascent person.

Armed with that scientific knowledge (and the Court likes to stay abreast of scientific trends), SCOTUS could amend Roe to restrict abortion to two kinds of situations: either when the mother's death or mental health is seriously threatened.  Careful tests with criminal penalties would be applied to avoid evasion of these exceptions.  The sum of these two justifications for abortion would result in perhaps a couple of hundred abortions a year.

Adoption should be a reasonable alternative if a baby impedes a woman's career.  There are thousands, if not millions, of families begging to adopt.  And of course, this would end Planned Parenthood's dedication to abort as many Black babies as possible.

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