We are now in the intermission of this year’s biggest judicial drama. The Supreme Court heard oral arguments on same-sex marriage (SSM) in late March—Act One—and will rule by the end of June. Before the actors in their black robes come back on stage, I’d like to drink some orange juice and chatter about three items.
First, instant reviews of Act One said the Supremes are on a states-rights kick: They don’t want Washington to impose a national uniformity in defining marriage by upholding the Defense of Marriage Act. Justice Anthony Kennedy, for example, spoke of “a real risk” of running into “conflict with what has always been the essence of state police power, which is to regulate marriage, divorce, custody.”
So be it. Too bad the high court didn’t have its nine heads screwed on straight four decades ago, when it nationalized abortion law to the extreme. Too bad Kennedy himself earned the nickname “flipper” two decades ago when he was the crucial fifth vote in the Court’s Planned Parenthood v. Casey upholding of Roe v. Wade. But the logic of a states-rights position on gay marriage also suggests an overturn of Roe v. Wade—if the justices have the courage to accept bad reviews from “The New York Times” and its acolytes.
That’s a big if. The justices’ predecessors in 1973 lacked both courage and respect for democracy. Despite clever tactics and overwhelming press sentiment, pro-abortion forces by the end of 1972 had won in only four states the virtually unrestricted abortion rights Roe v. Wadewould soon mandate for the nation. A Gallup Poll that year showed two-thirds of all Americans opposing elective abortion. In a referendum that year, 61 percent of Michigan voters said no to legalizing abortion on demand through the first five months. In North Dakota, 77 percent of voters turned down a similar referendum.
Today’s justices have a chance to do not only what’s right but what’s logical: If the Supreme Court affirms states rights on marriage, why not on abortion? Why not let today’s North Dakotans have their new law protecting an unborn child from abortion once his or her heartbeat is detectable? (That can be as early as the sixth week of pregnancy, when doctors use a transvaginal ultrasound.) Why not uphold the Arkansas legislature’s decision in March to establish protection for unborn children at 12 weeks, when an abdominal ultrasound can detect their heartbeats?