Before thinking about a political tactic, one has to frame an overall strategy, and before framing a strategy, one has to settle on the objective(s). So it hardly makes a difference what the accidental effects of Roe v. Wade are. If the objective is, regardless of any other principle or law or constitutional principle, to eliminate abortion, then returning the decision to the states might seem like a bad idea. However, eliminating abortion is an absolute impossibility, so in the name of an impossible objective we are scarcely justified in overturning an otherwise sound constitutional system that left homicide law up to the states.
Then there are questions of fact, having to do with diversity of abortion law. In the first place, it is not at all clear that all pregnant women would have the resources or the inclination to leave the state for an abortion. There is no useful parallel with fugitive slaves for several reasons: 1) slavery is a normal human institution and it is morally wrong to set up any equation of slavery=homicide, 2) slaves were property and it seems not unjust and not unconstitutional to insist upon the return of property from one state to another, 3) so what if there were a problem? Would that be worse than the current situation that permits a group of anti-constitutional jackasses on the court to dictate laws to states in which a majority oppose abortion? In fact, the price of our own liberties is to permit the wicked to lead their lives the way they wish to in their own communities.
Now, the question of higher law. The early Greeks did not have a concept of a universal moral law that could be rationally understood. I do agree with those scholars who have argued that Greek religion–especially the ideas that crystallized around the figure of Zeus–has an ethical component. The gods forbid certain activities, like mistreating a guest or seducing a man’s wife or stealing his property, but since these prohibitions are enacted into specific legal codes and traditions, there is no need to appeal to them. In general, it is not up to a judge or councillor to have ideas of his own or to appeal to an authority beyond the traditions that have given him his office.
Now, suppose there is a conflict between what everyone knows to be a divinely commanded rule and the decisions of a legal government? That is the situation in Sophocles’ Antigone, but, let us remember, that Creon has on his own account, thus acting as a tyrant, invented a new rule: the bodies of traitors are not to be buried. Antigone is acting not simply out of love for her brother–though that is her first motive–or even love plus respect for the gods–though she invokes that principle as well. but she is also doing what everyone in the community thinks his right. She does appeal to the higher law embedded in her people’s traditions, while Creon appeals to the higher law of all tyrants, raison d’etat.
Philosophers–Aristotle followed by the Stoics–did establish the principle of natural law, which Cicero introduced into Roman political and legal thought. But one cannot ordinarily appeal from Roman law to the natural law. It is by observing the laws of the Romans, the Greeks, and other peoples that one can sketch out a ius gentium, a general law adhered to by all decent nations, e.g. prohibitions on theft, murder, adultery, and by applying philosophical reasoning to the ius gentium, one may develop an understanding of a natural law that can be invoked when one is considering the rightness or wrongness of a tradition or a legal innovation, but no mere judge or even praetor may from his own mind use an abstract principle to overturn a longstanding tradition.
Our problem in understanding this lies, I think, in our habit of viewing the state as an institution of entrenched power controlled by leaders who are separate from the people. In the ancient world, such a perspective applied to tyrannies and not to legitimate governments
Then, yesterday's SCOTUS decision:
Here is a dilemma somewhat parallel to the question you raise. Suppose you are a Supreme Court justice who actually understands the Constitution–not a claim I would make for even the best of them, by the way. How do you vote on Chicago’s handgun ban? Obviously, the 2nd Amendment was not intended to apply to the states or municipalities in any way, but now that by the miracle of incorporation, the Bill of Rights means the opposite of what it actually says, do you uphold the ancient position and allow the Chicago crooks to deprive citizens of their guns or do you bow to necessity? My own view is that such a justice should take the opportunity to restate the original intent of the Bill of Rights then, bound by stare decisis, declare–as they did–that whatever is sauce for the First Amendment is sauce for the Second.
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