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Port: 'The Constitution does not take sides on the issue of abortion'

If we could set aside our feelings about abortion for a moment — a tall ask, I know, given how passionate we all are on this issue — perhaps we could recognize that the Court is doing something extraordinary.

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Dorothy Montplaisir, left, and Myrna Rivard, both of Fargo, protest abortions Wednesday, Oct. 14, 2015, in front of the Red River Women’s Clinic in downtown Fargo.
Michael Vosburg / Forum Photo Editor
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MINOT, N.D. — The U.S. Supreme Court, weeks after a draft opinion leaked and set off a firestorm of debate and protest, has finally issued an opinion overturning the Roe v. Wade precedent.

You're going to hear a lot of strong opinions on that turn of events, and almost all of them will be rooted in how the person expressing the opinion feels about abortion.

That's too bad, because what's overlooked in that pro-choice/pro-life battle line is that the court isn't really choosing a side here.

The court, decades after appointing itself the decider in the debate over abortion, is moving back to the middle.

"The issue before this Court, however, is not the policy or morality of abortion," Justice Brett Kavanaugh writes in his opinion concurring with the court's majority.

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"On the question of abortion, the Constitution is therefore neither pro-life nor pro-choice," he continues. "The Constitution is neutral and leaves the issue for the people and their elected representatives to resolve through the democratic process in the States or Congress — like the numerous other difficult questions of American social and economic policy that the Constitution does not address."

If we could set aside our feelings about abortion for a moment — a tall ask, I know, given how passionate we all are on this issue — perhaps we could recognize that the Court is doing something extraordinary.

Something that's very rare in our system of government.

Having misappropriated for itself authority over a political, rather than legal, question, the court is now giving that authority back to the political process.

The question of abortion is now one for democracy, a process that includes ballots and legislatures and, potentially, even an amendment to the U.S. Constitution to add the right to access an abortion that a previous iteration of the Supreme Court falsely claimed existed.

That's hard, I know.

Settling the abortion debate — to the extent an issue like that could ever be settled — is going to require persuasion and reason to win over voting majorities. Those who believe access to abortion, to one degree or another, should be legal are going to find that a difficult reality to countenance.

But isn't this precisely what democracy asks of us? That we govern not through fiat decisions imposed on our society, but through consensus?

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The "will of the people" is fickle and fallible. Political majorities often make terrible decisions.

Democratic processes often get things wrong. More often, and especially on a long enough timeline, they do get them right. That's not a satisfying answer, especially in this time where instant gratification is a thing Americans expect, but it's better than the alternative.

When Roe v. Wade was decided, 30 states banned abortion at all stages of pregnancy.

Now that the Roe decision has been overturned, 23 states have laws that will go into effect restricting abortion access to one degree or another ( including North Dakota ), while 16 states have laws that will specifically protect access (I wrote in May about what will happen in North Dakota should Roe be overturned).

That the starting point for the coming political debate over abortion (as opposed to the legal one we've been having for decades).

Where we go from there is up to us, and that's a very good thing, made possible by the demise of Roe.

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Opinion by Rob Port
Rob Port is a news reporter, columnist, and podcast host for the Forum News Service. He has an extensive background in investigations and public records. He has covered political events in North Dakota and the upper Midwest for two decades. Reach him at rport@forumcomm.com. Click here to subscribe to his Plain Talk podcast.
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