On January 21, 2022, one day before the 49th anniversary of Roe v. Wade, Virginia’s new attorney general, by way of the state’s solicitor general, advised SCOTUS that the landmark case was “wrongly decided” and that “Virginia is now of the view that the Constitution is silent on the question of abortion and that, it is therefore, up to the people in the several States to determine the legal status and regulatory treatment of abortion.”
Since all that was required to notify the Court were a few lines stating withdrawal from the lawsuit, the extensive letter from the AG was unnecessary and naught but a political screed. Unless, of course, the AG plans to file an amicus brief directly opposing abortion as the current view of Virginians. It is interesting to note that the Commonwealth is characterized clinically, abstractly, as “Virginia is now of the view,” absent any reference to the will of the citizenry. It is a somewhat brazen claim as Miyares won the office by a few votes over 26,000. The sound is more like the chime of an ideological church bell calling to the faithful.
Somewhat reminiscent of the cannon fire on Fort Sumter, the Commonwealth has been cajoled into yet another heated skirmish in the culture wars. Beneath the legal nicety of informing the high court, the new AG raised further criticism of Supreme Court jurisprudence, asserting that its foray into the abortion debate “has not been improved by the Court’s constitutionalizaton (emphasis added) of the issues in Roe, nor by its jurisprudence since.”
More than a gauntlet and faster than a speeding bullet, the in-your-face statements echo the pushback from states citing opposition to the “federalization” of voting rights and protections. Together these challenges are redolent of the states’ rights cannonades from the Civil War and subsequent complaints of infringement upon state prerogatives.
Legally, the Commonwealth is arguing that five decades of precedent must be abandoned in favor of a “now” realized jurisprudence that the Court was wrong. Some may recall the statements of the three latest appointments to the Court during confirmation proceedings and their adherence to precedent. The “silence” of the Constitution cited in the Solicitor General’s letter reflects the views of former Justice Antonin Scalia. In an April 2010 address to the Thomas Jefferson Center for the Protection of Free Speech (a UVA academic organization), Scalia offered his view of the “originalist” interpretation:
The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.”
Scalia bolstered the view emphasizing that no provision of the Constitution guaranteed the right to abortion, homosexual sodomy, or assisted suicide, and nothing prohibited the death penalty. Andrew Ferguson, the Solicitor General, is a UVA law school graduate and a member of the Federalist Society often credited with prepping candidates for Senate confirmation hearings (https://fedsoc.org/contributors/andrew-ferguson-1) Having clerked for Scalia’s judicial twin, Clarence Thomas, Virginia’s novel discovery of enduring jurisprudence may be deemed mere channeling of Scalia’s vision.
Followed to its extreme application, [originalism] may be argued that the Constitution did not envision the end to slavery or the grant of suffrage to women. Since these did not exist at the time of adoption of the Constitution, they may be said to be wrongly decided and no longer the view of some states.
Common sense testifies that the Constitution is silent on scores of matters that are and have been addressed by federal and sate courts since the document was formally adopted, as Scalia stated. It has been amended 27 times since adoption, including the Bill of Rights, its first ten amendments. What, then, the question arises, is originalism? Followed to its extreme application, it may be argued that the Constitution did not envision the end to slavery or the grant of suffrage to women. Since these did not exist at the time of adoption of the Constitution, they may be said to be wrongly decided and no longer the view of some states.
If, as the Commonwealth’s attorney general argues, such matters may only be determined by the people in the several states, is the new rule of law, then, that all “constitutionalized” and “federalized” principles can be balkanized in favor of 50 different jurisdictional regimes? Neighboring states with liberalized abortion laws or regulations can compete for business. Sovereign Native American jurisdictions could benefit from such originalist interpretations.
Virginia’s “now” legal view invites far more rancor than that presently directed at SCOTUS and opens the door to multiple battle fronts in the culture wars. This phenomenon has already begun to play within the state regarding the mask mandate, an “unmandate” issued by the new governor. Unrestrained ideology simply has no affirmative function in governance of a society, much less a diverse one. In this case, the political party in power has decided to use the constituency as a lab experiment to test its theories.
The results of the 2021 state elections have been targeted by the new administration for examination under an election integrity scope for unexplained reasons. Perhaps systemic fraud will be uncovered, calling into question the validity of the newly elected. For the moment, the “now” view of abortion connotes that the cries of the lambs being led to slaughter have finally, after 49 years of jurisprudence, been heard by those attuned to such pleas. Four years may feel like forever.