Remember your childhood admonition from your mother? You would ask, “Mom, can I have some candy?” And she would say, “I’m sure you can … but you may not!”. And then would follow the English lesson on the difference between “may” (permission) and “can” (capability). And then, of course, you would go without the candy.
We are faced now with legislators who learned that lesson all too well. 40 years ago, they lost the permissions battle when the Supreme Court ruled in Roe v Wade. But they have since waged a capabilities battle, and slowly but irresistibly they have won the day.
There arose from that court ruling a principle of individual right to privacy in matters of health care. But that right, though still in place, has no meaning if it cannot be exercised. We have permission, but the ability is being chipped away.
Thus it is time — past time — to reignite a conversation about the principle of law and government in this country.
We have to accept that the Supreme Court decision is the final law of the land, unless and until the legislature acts to overturn it within the constitutional boundaries.
The Supreme Court established that abortion is a right, and the legislature has not acted to overturn that.
Instead, there are all of these obstacles that are being put in the way of the exercise of that right. The net result is that we have a right but we are obstructed from exercising that right.
In effect, these state and federal obstructionists are asserting that the Supreme Court decision is not the final law of the land, and that a law does not have to be obeyed — that it is perfectly valid to obstruct other people from doing what the court has mandated it is their right to do.
That is not a principle of government and law that can be widely applied. If legislatures are not bound by the decision of the court, what is the purpose of the court? If legislatures can actively and openly defy the court, then why can’t individuals also defy the court? And if they can defy the Supreme Court, then why not defy the lower courts — circuit and district?
We depend, as a system of laws, on everyone accepting that final judicial decisions will be accepted and obeyed. When we toss that aside — whether for reasons of morality or reasons of economics or reasons of pure obstinance — we challenge a fundamental pillar of the social structure.
As a young man, I raised objections to a number of laws and decisions that were supported by the legislature and the courts (and enforced quite sternly by the executives). I had moral objections and — to this day — believe I was right. But I also understood that I would be punished for tossing aside those decisions. That was part of the calculus when deciding whether to obey or not. And, when being fingerprinted and photographed in the field and boarded on buses to the nearest detention center, I understood that’s what happens when my moral certainty runs into the law of the land.
These legislators face no such threat of punishment for ignoring the law of the land and casting off the decisions of the court. Their calculus does not include possible arrest or punishment — and in most cases does not include morality either. The modern-day legislator is proud to ignore the law of the land if, in their calculus, it will leave them in power.
These legislators do not understand or respect the principle of law and government. Yet, there they are — making laws and governing.