Unlike the position stated in Brendan Gill’s most recent letter to the Local, far from an exercise in judicial activism, the Supreme Court decision overturning Roe v. Wade represents an affirmation that “the people,” not nine unelected justices, should be the ones who make decisions about “personal, reproductive rights” and how those rights should be balanced against the states’ interest in protecting the lives of unborn children.

Roe itself was one of the most egregious exercises in judicial legislation. Without a shred of evidence in the text or spirit of the Constitution, the Roe majority made up a national “constitutional right,” which it then articulated in essentially the words of a regulatory agency (What may a state say with respect to abortion in the first trimester? In the second? Pre-child viability? Post-child viability?). It overturned abortion laws in more than 45 states. 

Dobbs righted the course: in a federal system, in the absence of a clear constitutional command, each state has the right, acting through its elected representatives, to make its own determination as to how competing rights should be reconciled. Mississippi took what was (to me at least) an eminently reasonable approach: limited restrictions on abortion in the first 15 weeks of gestation, limited exceptions to an abortion prohibition thereafter. 

The thought that New Jersey’s (to me unfortunate) approach to these issues — to essentially permit abortion on demand until birth — should be mandated for all states, for all time, flies in the face of the principles of a federal republic. Mississippi should be able to reach a different conclusion from New Jersey if their voters (a majority of whom, after all, like the voters in virtually every other state, are women) so decide. 

Abortion raises difficult, transcendent moral issues; those who castigate their Supreme Court for concluding that they should not be the ones to decide these issues in a one-solution-for-all judicial mandate miss the point of the Supreme Court’s action. Further, those like Brendan Gill who are most vocal in their criticism of the court often fail to even mention the fact that abortion involves two lives, not one. 

Finally, Gill’s criticism of inadequate child care funding or the like may be entirely justified. But it is a post-Roe America that reflects these inadequacies, not some distorted view of the Supreme Court’s action in Dobbs. Politicians should have stepped up to the plate on these issues more effectively and directly. Dobbs may provide the spur. 

Robert L. Tortoriello