The Corner

Linda Greenhouse vs. Federalism on Abortion

Linda Greenhouse writes in the New York Times that President-elect Trump’s stated view that Roe v. Wade should be overturned and states should be able to set their own abortion policies would result in a country “half-slave and half-free.” By that she of course does not mean that in some states unborn human beings would be accorded no legal protections while others would recognize their full humanity. Elaborating on what she does mean, she writes, “[Trump’s] comments were reckless or cynical or both. They resonate with a dark period of Supreme Court history, when ‘separate but equal’ was the law of the land.” You have to marvel at her choice of just the right words: “Resonate with” is exactly what you should go with if you want to assert a vague connection that has no logical content.

Her further description of the caselaw of “separate but equal” does nothing to supply that content. She hauls out a 1938 case, Missouri ex. rel Gaines v. Canada, in which the Supreme Court held that a state that offered law-school instruction to whites had to do so to blacks as well, and could not defend its refusal to offer it to blacks by giving them money to receive legal education in another state. She notes that the case has been mentioned in recent decisions on abortion: The availability of abortion in other states has not been considered a defense for states that impose restrictions on it.

In the 1938 case, the Court acted on its belief that states had a constitutional obligation to offer education equally to people of all races (even if it simultaneously believed, or pretended to believe, that states could do that while maintaining institutions formally segregated by race). The recent decisions invoking the case have been based on the premise that states have a constitutional obligation to keep abortion available. The whole point of Trump’s remarks is that in a post-Roe world the Court will not pretend the Constitution imposes this obligation on the states. The case is therefore wholly irrelevant to anything Trump said, although it does help Greenhouse associate the pro-life cause with that of segregation. You might then say that the column “resonates with” propaganda.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

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