The Corner

Law & the Courts

An Illegitimate Act

Sometimes, my editors here ask me to write something about a Supreme Court decision, and I sometimes resist, because it is the most boring subject. Not because what the Supreme Court does isn’t important, but because it is Calvinball.

Sports can be entertaining to watch because the contests have rules. Calvinball, the make-it-up-as-you-go game from Bill Watterson’s beloved comic, would be boring to watch, because there are no rules.

Today’s Supreme Court decision on Texas’s abortion regulations is pure Calvinball. The day before yesterday, All the Best People were mindlessly, beard-strokingly repeating that when it comes to the Second Amendment, constitutional rights are not “absolute.” You hear that a lot, because people think it makes them sound smart, nuanced, and reasonable. The right to keep and bear arms — which is actually right there in the Bill of Rights — is, in their view, almost limitlessly limitable.

But Texas’s requirement that surgeries be performed in surgery centers is plainly unconstitutional. At least, according to the same people.

On Sunday, I wrote a piece about Texas, specifically about Austin’s attempt to do to Airbnb what it did to Uber: regulate it out of business. Austin now has on the books a local law about how late your dinner parties can go, a law that, as one reader pointed out, regulates sleepovers. But requiring that doctors performing serious medical procedures have admitting privileges in hospitals within 30 miles? Plainly unconstitutional overreach.

There is no right to abortion in the Constitution. It’s “there” because Harry Blackmun wanted it to be there, and made it up, and got a few other men to agree with them. You can agitate against it, elect state and local legislators opposed to it, build large majorities in favor of at least regulating it, and pass laws policing it that would, in practically any other circumstance, be treated as ordinary exercises in legislation. But when it comes to abortion, you can’t. You have no political recourse. You have the fiat of a few mystics in black robes who simply decree that it must be thus, and then offer some Calvinball justification for it.

That isn’t just wrong, but illegitimate. And it isn’t a legal dispute, but an exercise in brute political force. It should be understood that way. 

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