Bruce Ledewitz, Pennsylvania Capital-Star

In January, Linda Greenhouse wrote a column in the New York Times entitled, Does the War Over Abortion Have a Future?

In the column, Greenhouse observed that since the Dobbs decision overturned Roe v. Wade, there had been a massive national shift on the abortion issue. As a string of losses on state ballot initiatives demonstrated, the anti-abortion movement has lost the country and Republicans are scrambling to figure out how to adjust to this new political reality.

She wrote, “There is a case to be made…that abortion access has won the culture war.”

I almost laughed out loud when I read that. Not because, as Greenhouse acknowledged, there are still extreme abortion restrictions all over the country.

No, I laughed because, though Greenhouse would never admit it, this is precisely the sort of outcome that Justice Antonin Scalia predicted would occur if only the Supreme Court would get out of the way by overruling Roe and letting the voters decide the abortion issue.

Scalia argued consistently—most cogently in his dissent in Planned Parenthood, v. Casey — which was also overruled by Dobbs —that by nationalizing the abortion issue and removing it from ordinary politics, Roe had rendered the abortion issue much more difficult to resolve.

Now, after Dobbs, Americans were coming to a consensus about abortion, just as Scalia said we would.

Of course, Scalia would be unhappy personally with the result of the emerging consensus that Greenhouse describes. Scalia was resolutely anti-abortion.

But Scalia always tried to distinguish politics from law. He meant it when he wrote in his Casey dissent that the Constitution left the abortion issue to the states and they could resolve it any way the people chose.

In this sense, his position, like that of Justice Samuel Alito’s majority opinion in Dobbs, reflected neither his politics nor his religion, despite what readers have been told to the contrary.

As Greenhouse also wrote, Dobbs “freed people to acknowledge—or even shocked them into realizing—that a civilized country requires access to abortion.” Somewhere, Scalia is smiling: “I told you so.”

Despite Scalia’s prescience, both sides are still ignoring the other half of his formula for national peace and reconciliation over abortion — the issue should be left to the states.

There are a lot of regional differences in America over abortion. That is why federalism, by emphasizing the autonomy of each state to go its own way on the issue, is so important to resolving it. California is not Arkansas.

Both sides are committing a political error by trying to nationalize the issue again, this time in Congress.

Democrats may actually understand this. Their efforts to pass abortion protection legislation at the federal level during the past two years have seemed half-hearted. President Joe Biden devoted almost no political capital to that fight.

Democrats apparently realize that they can make significant inroads in red states by promoting local abortion protection legislation and opposing proposed abortion bans by Republican-dominated state legislatures.

Abortion may even be part of the reason that Democrats now control the state House in Pennsylvania.

Meanwhile, the national anti-abortion movement is pursuing a catastrophic course by insisting that its support in the 2024 Republican Presidential primaries, where such support is critical, will depend on a candidate’s commitment to a national abortion ban.

If the 2024 Republican presidential nominee is forced to take that position to procure the nomination, it will be a considerable albatross in winning the election. There is practically no support for a national abortion ban, and especially none among voters who are not already certain to vote Republican.

Meanwhile, there is no threat more likely to motivate moderate women voters as the likelihood of losing abortion access no matter where they live.

Presumably, cooler heads will prevail in the Republican Party. The anti-abortion movement should only insist that on a candidate’s pledge to veto any Democratic Party effort to pass pro-abortion legislation in Congress, thus leaving the issue to the states. There is a lot of political support nationally for that compromise position.

Aside from the immediate political fallout, a state-centered abortion issue is also in the anti-abortion movement’s long-term interests. As Ross Douthat and other commentators have written, opposition to abortion will never become a majority position until people can see a humane alternative.

That alternative, a family-friendly social services net that really supports women and children as an alternative to abortion, is not going to happen any time soon at the federal level.

But there are states where the anti-abortion movement is sufficiently powerful to push aside Republican Party opposition to the higher taxes that will be necessary to fund such a program.

The states have always served as laboratories of experimentation. A positive anti-abortion project is the logical next step for the movement. And it can only happen in a state where the stakes of such a program are understood.

For the goal of the anti-abortion movement has never been simply to outlaw abortion. Abortion was illegal in America for years and it is estimated that a very large number of illegal abortions took place anyway, often endangering the women who procured them.

The goal had always been to create a more humane country in which all life would be valued, from conception to natural death.

Now, with the end of Roe and the end of nationalized abortion rules, there is a real chance to try that approach, so that abortion eventually becomes not so much illegal, as unthinkable.

Pennsylvania Capital-Star is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Pennsylvania Capital-Star maintains editorial independence. Contact Editor John Micek for questions: info@penncapital-star.com. Follow Pennsylvania Capital-Star on Facebook and Twitter.

Kyle Rittenhouse, who shot three men at a riot in Kenosha, Wisconsin, killing two of them, was acquitted of all criminal charges.

He has been hailed as a hero. He has been feted by politicians, including Donald Trump. He has been compared to John Wayne as a symbol of law-abiding people fighting back against lawlessness. When he took a rifle to a protest over the earlier police killing of Jacob Blake, Rittenhouse said his intention was to protect property against violence.

But the two men Rittenhouse killed were unarmed. John Wayne never shot an unarmed man.

Rittenhouse was acquitted because of changes in the legal understanding of self-defense in recent years. Based on the Rittenhouse verdict, the rest of us are now unsafe around anyone with a gun.

Rittenhouse had been guarding an auto dealership at which several cars had been set on fire when he was confronted by Joseph Rosenbaum, the first man Rittenhouse killed. Evidence showed that Rosenbaum was aggressive and lunged for Rittenhouse’s rifle while cursing him. Rittenhouse testified that he feared that Rosenbaum would seize the rifle and shoot him. The jury found this fear to be reasonable and this may be a fair interpretation of the current law of self-defense in Wisconsin.

But that is precisely the problem. No one actually knows what Rosenbaum intended. Rittenhouse admitted that he pointed his rifle at him. Rosenbaum might have intended simply to disarm a dangerous man.

The acquittal means that the person holding the gun gets to decide who lives and who dies.

You can see where this interpretation of self-defense can lead in the trial of the three men who were convicted of killing Ahmaud Arbery, an unarmed black jogger running through a suburb of Brunswick, Georgia. One of the men charged, Travis McMichael, said that Arbery lunged for his gun.

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McMichael was convicted of malice murder, so this defense failed. But George Barnhill, the second prosecutor in the case, who later recused himself, refused to prosecute on just this basis: “at the point Arbery grabbed the shotgun, under Georgia Law, [Travis] McMichael was allowed to use deadly force to protect himself.”

John Wayne would not have shot a man he knew was unarmed, as Rittenhouse did. The Duke would have defended himself against non-lethal force by the use of his fists.

After Rittenhouse killed Rosenbaum, he made a phone call to a friend saying that he had just killed someone. He did not seek medical attention for the man on the ground. He did not call the police. Instead, he continued his armed patrolling.

Anthony Huber, the second man killed, considered Rittenhouse to be dangerous. Huber’s girlfriend said in an interview that Huber rushed Rittenhouse to protect her and others nearby. Huber struck Rittenhouse with a skateboard he always carried and reached for Rittenhouse’s rifle. That is when Rittenhouse shot him once, fatally wounding him.

Clearly, Huber was not trying to shoot Rittenhouse, but to disarm him. As the events of that night demonstrated, he was not wrong to fear that Rittenhouse was irresponsibly dangerous. Huber’s courage cost him his life.

John Wayne would not have fired his weapon at Huber, just as John Wayne would have led the police to Rosenbaum’s body.

Ironically, there was someone in Kenosha that night who embodied the grace and restraint of John Wayne—Gaige Grosskreutz, the man Rittenhouse wounded after killing Huber.

Grosskreutz, who was at the protest to provide medical care, and who was carrying a handgun, was told that Rittenhouse had shot someone and was trying to get away. He saw Rittenhouse fire at Huber and moved directly toward him with his own gun visible. He and Rittenhouse confronted each other. Grosskreutz did not fire. Rittenhouse did.

Rittenhouse did not hesitate to shoot, did not assess the situation, did not act like an adult who understood the responsibility of possessing a firearm.

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Rittenhouse is alive today because Grosskreutz did not shoot. By the jury’s reasoning, he had every right to kill Rittenhouse as they pointed guns at each other.

This is where the madness of the current interpretation of self-defense has brought us.

Proponents of the second amendment right to bear arms applauded the Rittenhouse verdict. But they should not have done so. Kyle Rittenhouse has exploded the myth that guns make us safer. Two men are dead and one wounded only because Rittenhouse was carrying a rifle.

Conservatives sometimes assert that the violence of looting and arson at demonstrations is what provokes counter violence. The irony of Kenosha is that Rittenhouse did not protect property. He simply took life.

Here is what may happen next. Armed men will begin attending the rallies of their political opponents. They now have little to fear from any confrontation. They are now free to engage in intimidation. They now know that in any encounter in which it can be said that someone lunged for their gun, they are free to shoot.

This will lead, of course, to the arming of their political opponents, who will say they need to do this in pure self-defense. According to the Rittenhouse jury, in any resulting armed confrontation, the first one to fire is not guilty.

Proponents of gun rights do not understand that this situation will not be tolerated. Eventually, the right to bear arms in public will be severely restricted. If the Rittenhouse verdict represents the current law of self-defense, then banning guns is the only way for the rest of us to be safe at public events.

What happened in Kenosha was a tragedy. Obviously, it was a tragedy for the men killed and wounded. But it was also a tragedy for Kyle Rittenhouse, who is now a killer.

The adults who encouraged Rittenhouse to go to the protest and carry a rifle are equally responsible for this tragedy. It is too bad they were not charged.

The people who now praise what Rittenhouse did are also to blame.

The only good that can come from the events in Kenosha will be the curbing of the right to bear arms and the reform of the law of self-defense. Hopefully, that will transpire before there are any more shootings.

Opinion contributor Bruce Ledewitz teaches constitutional law at Duquesne University Law School in Pittsburgh. His work appears biweekly on the Capital-Star’s Commentary Page. Listen to his podcast, “Bends Toward Justice” here. His latest book, “The Universe Is On Our Side: Restoring Faith in American Public Life,” is out now. His opinions do not represent the position of Duquesne University Law School.

Pennsylvania Capital-Star is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Pennsylvania Capital-Star maintains editorial independence. Contact Editor John Micek for questions: info@penncapital-star.com. Follow Pennsylvania Capital-Star on Facebook and Twitter.