Robert F. Jakubowicz: Trump cynically heats up abortion issue


PITTSFIELD — At a recent political rally in Wisconsin, the president called the Democrats, "the party of late term abortion." He embellished that remark with a fabricated story, sure to incite his supporters against Democrats, of a meeting between a mother and the doctor with a live baby wrapped "beautifully" while they discuss "whether or not they will execute the baby." As a matter of fact, it was two Republican presidents who appointed five of the seven justice majority on the Supreme Court that decided Roe v. Wade making abortion a constitutional right. Nixon appointed three of them and Eisenhower appointed the other two.

But more to today's political point, the president is adding the divisive issue of abortion to create more chaos, which he seems to thrive on politically, to his reelection campaign.

His two appointments to the Supreme Court, have already encouraged a number of fetal "heartbeat bill" states to line up with their demonstrably unconstitutional state abortion laws that they hope will be legally challenged and reach the reconstituted majority of conservative justices on the court as test cases to overturn the basic principle behind Roe v. Wade, namely, the constitutional right of privacy for a woman during her pre-viability pregnancy period (usually 22 to 24 months) to terminate the pregnancy.

Ohio, Georgia and Mississippi, recently enacted such laws. The law in the latter state is one of the strictest abortions law in the nation. It bans abortions from the time a fetal heartbeat is detected (usually six6 weeks into the pregnancy). Many women, according to medical professionals, don't even know they are pregnant at that time.


Mississippi's only abortion clinic has filed a lawsuit to block this law from going into effect. That law on its face, violates the basic principle of the Roe decision and unless Roe is overruled, the Mississippi law, and similar laws in other states, would be ruled unconstitutional in violation of the Roe decision. But the fetal "heartbeat bill" state lawmakers believe that the addition of conservative Justices Brett Kavanaugh and Neil Gorsuch to the perceived like-minded trio of Justices Clarence Thomas, Neil Gorsuch and Chief Justice John Roberts is the majority that is now ready to overturn the Roe decision.

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Before his appointment to the court, Roberts stated that the Roe case was wrongly decided. The Constitution does not mention abortion. Prior to the Roe decision, Congress and the states were free to enact their own laws on this issue.

Some outlawed abortions. Others, like a Connecticut law, even criminalized the giving of advice about and prescribing contraceptive devises, because such use was considered akin to abortion by preventing the birth of children . Under that law, an executive of Planned Parenthood and a Yale medical School professor were convicted for committing those acts and their appeal went all the way to the Supreme Court. The court in a 1965 split decision overturned these convictions and struck down the state law as unconstitutional. Writing the majority opinion, Justice William Douglas stated that the specified rights in the Constitution's Bill of Rights and other parts have a "penumbra" (a shadowy edge of unwritten rights) that emanate from these specific rights. One of these rights being a right of privacy regarding personal matters like contraception. This decision laid the legal groundwork for the Roe decision in 1973 that decided that this right of privacy also included a right to an abortion.

But questions have been raised about whether Roberts would vote to overturn Roe. During his testimony at the Senate hearing, he expressed a strong view about maintaining the public institutional image of the court. He indicated that he favored incremental changes to court precedents, especially longstanding ones, rather than a sudden, complete change. The Roe precedent for abortions has existed for 46 years. He also told the senators that "nothing in (his) personal views based on faith or other sources would prevent him from applying the precedents of the court " But this remains to be seen.


One thing that is certain to occur as a consequence of an abrupt and complete overruling of Roe is political chaos. Congress and the states will be free to ban, protect or regulate abortion. America would revert to its pre-Roe abortion days. Congress is not likely to take action to legislate a national policy because of the now chronic lack of bipartisan ability by the political parties to work together, especially on a social, hot button issue like abortion. The president will blame the Democrats for such legislative inaction. But states can and will set their own state policies on this issue. About a handful of states have already passed so-called "trigger laws" regarding abortions that would become effective on the date Roe is overruled. Other states will enact a hodgepodge of state laws from banning to regulating abortions. The president will also blame the Democrats for this divisive, national patchwork of differing state abortion laws.

The president is said to love chaos. His rekindling of the abortion issue will add to what is already shaping up to be a chaotic, divisive presidential election campaign. This nation needs a unifier to lead it, not a divider.

Robert "Frank" Jakubowicz is a regular Eagle contributor.


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