On Political Access

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A commenter writes:

Let's put the shoe on the other foot - let's say that the USSC ruled instead that abortion is illegal everywhere, all the time, and that no state or local or federal law could overrule it. You would need to pass a constitutional amendment to override this, but let's say you couldn't quite get the 3/4 majority of states necessary to pass the amendment - not an unlikely scenario. OK, really think about this. Would you then feel that the pro-choice movement now has access to the political system, they just can't get the votes? Even if you passed laws making abortion legal in Massachusetts, New York and California with 70% majorities, that we immediately struck down in the courts? How would you feel then? Seriously, thing about it.

If the Supreme Court had found that fetuses were full persons, and therefore subject to the full protection of homicide laws, etc, and the balance on the court were such that no conservative justice would retire unless guaranteed replacement by an equally vehemently pro-life justice, would pro-choicers think that they had legitimate access to the political process because they could, in theory, persuade 38 state legislatures and a congressional supermajority to pass an amendment?

We're content to leave many areas of law that remote.  But human rights and personhood cannot thus be walled off with good results.

And that will be my last post on the subject for a while, I hope.

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Megan McArdle is a columnist at Bloomberg View and a former senior editor at The Atlantic. Her new book is The Up Side of Down.

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