When a positive right ends
Democratic outrage about the upcoming reversal of Roe may signal the possible end of their conferring political rights to favored voters.
It is amazing to consider that Politico’s story that the Supreme Court is poised to overturn Roe v. Wade is only four days old. One reason this story feels so old is due to the tremendous amount of energy Democrats have spent being enraged about the upcoming decision.
The poster child of Democratic rage has been, as usual, the Senator of the Powhatan people, Elizabeth Warren:
<blockquote class="twitter-tweet"><p lang="en" dir="ltr">I am angry because an extremist Supreme Court thinks they can impose their extremist views on all of the women of this country and they are wrong. <br><br>I have seen the world where abortion is illegal. We’re not going back—not now, not ever. <a href="
To get a sense about why Democrats are in such a dander about this, it might help to step back to see what they believe they are losing.
As Justice Samuel Alito writes in his first draft opinion, through Roe v. Wade, the Supreme Court in 1973 conferred a broad right of American women to obtain an abortion. Before this ruling, the states were the highest political entity expected to address the issue. With this ruling, however, the Supreme Court applied the same regime across all states, regardless of how each state previously addressed the issue. Now, after almost fifty years under the Roe standard, an upcoming ruling is expected to revert the issue of abortion back to the states.
What reversing Roe will not do is make abortion illegal across the country. While it is conceivable that a state may make getting an abortion more difficult, or even illegal, there is nothing that would prevent a state (such as California) from making itself an abortion tourism destination. Anyone who says otherwise is either lying or does not know how the law works. Seeing that Senator Warren used to be a law professor, including at Harvard, the reader can easily (and dare I say accurately) assume this writer’s position about whether her reaction is honest.
However, even if every reaction by Democrats and third-wave feminists were honest and truthful, that still doesn’t help us answer the question of why they are as upset as they are. They may be genuinely be upset about the possibility of some American women losing their right to choose to have an abortion. But that doesn’t fully explain their vitriolic and overly emotional reactions to this.
One hint can be seen in the reactions by some of the goofier members of the Democratic leadership. For example, California congressman Eric Swalwell tweeted that “Republicans won’t stop with banning abortion. They want to ban interracial marriage.” President Joe Biden told reporters that LGBTQ+ children could be the next targets of a Trump-dominated Republican party.
Notwithstanding the ridiculousness of these claims - no Republican politician has made any statements that they want to do any of these things, and these statements were clearly made to rile up the base, there may be a fundamental reason underlying the Democratic histrionics we’re observing.
Essentially, Roe provided American women the legal protection from local prosecution if they obtain an abortion in the first trimester of pregnancy. We can characterize this protection a “positive right”. A positive right means a person has the legal or moral ability to perform a particular act. In this case, the mother has the right to terminate her pregnancy by removing her unborn child (then in the form of either an embryo or fetus). In contrast, a “negative right” is when a third party is unable to do something with or to someone else. For example, when I own private property, I have the negative right of keeping it and using it as I see fit, regardless of what my neighbor or the government may feel about it.
The problem with many positive rights is that such rights are usually incurred at the expense of someone else. For example, if I have a right to housing, someone else, usually without their consent, needs to pay for the building and maintenance of that dwelling. In the case of a woman’s right to have an abortion, the person who pays for the exercise of that right is her unborn child.
Politically, what Roe did was remove from the states the ability of determining whether, and the extent to which, women who reside there should have that right. The ruling was one of many examples of Democrats using federal courts to confer positive rights to groups to which it wished to incur favor. While Democrats don’t have a monopoly on this tactic - think back to 2009, when Newt Gingrich encouraged seniors to bellow “Hands off my Medicare!” - their political power is based primarily on conferring positive rights to voter blocs that will reward them each second November. Now that a Republican-leaning Supreme Court is about to remove one of the Democrats’ key planks from the federal law books, all of those rights Democrats have conferred at the expense of others no longer appear secure. Republicans have no desire to make interracial marriage illegal. However, it may be only a matter of time before “gun rights”, union privileges, and other supra-consitutional rights may be up for review.
In other words, notwithstanding the indignant outrage Democrats have generated since news of the upcoming ruling has come out, it is entirely possible that we ain’t seen nothin’ yet.