Letting Go of Roe

The Atlantic Monthly | January/February 2005

The Agenda

Cross-Examination

=Letting Go of Roe=  The Democratic Party's commitment to preserving Roe v. Wade has been deeply unhealthy for abortion rights, for liberalism more generally, and ultimately for American democracy

by Benjamin Wittes

Are we about to suffer through another horrible Supreme Court nomination dominated by abortion politics?

Bet on it. With Chief Justice William Rehnquist seriously ill, the prospect of a Supreme Court vacancy early in George Bush's second term looms over American politics. The script for this—and every—Republican high-court nomination was written long ago. You already know how it goes: Both his own convictions and the need to keep his political base happy require a conservative president to nominate someone expected to vote to overturn Roe v. Wade, the 1973 case that established the constitutional right of women to terminate their pregnancies. He has only two realistic choices. He can name someone openly hostile to Roe—and thereby trigger a major confrontation with liberal interest groups and Senate Democrats. Or he can name someone with no record on abortion rights but whose jurisprudential approach suggests a predictable skepticism toward them—in which case liberals will insist on trying to divine the nominee's views on the question, which he or she in turn will endeavor to conceal. Unless the president nominates someone the Democrats deem it not in their interests to oppose, the nomination process will become an ugly spectacle in which a single narrow issue pushes to the sidelines discussion of the broad array of other important legal questions the Supreme Court handles. And that process will cast abortion-rights supporters as intolerant of those who disagree with them—or even those they fear may disagree with them.

What's the alternative?

Liberal abortion-rights supporters could chill out.

Do you mean surrender and let Roe die?

That's exactly what I mean. It wouldn't necessarily come to that, of course. Republicans have put seven of the nine current justices on the Supreme Court—and they still have only one more anti-abortion vote than they had in 1973, when the decision came down 7 to 2. Where reproductive rights are concerned, the bark of a conservative nominee is frequently worse than his bite—as three justices nominated by Ronald Reagan or George H.W. Bush proved in 1992, when, in Planned Parenthood v. Casey, they voted that "the essential holding of Roe v. Wade should be retained and once again reaffirmed."

Still, if Roe ever does die, I won't attend its funeral. Nor would I lift a finger to prevent a conservative president from nominating justices who might bury it once and for all.

Are you a pro-lifer?

Not at all. I generally favor permissive abortion laws. And despite my lack of enthusiasm for Roe, I wouldn't favor overturning the decision as a jurisprudential matter. A generation of women has grown up thinking of reproductive freedom as a constitutional right, and the Court should not casually take away rights that it has determined the Constitution guarantees. Stability in law—particularly constitutional law—is critically important; the Supreme Court would do well to remember that. Still, the liberal commitment to Roe has been deeply unhealthy—for American democracy, for liberalism, and even for the cause of abortion rights itself. All would benefit if abortion-rights proponents were forced to make their arguments in the policy arena (rather than during Supreme Court nomination hearings), and if pro-lifers were actually accountable to the electorate for their deeply unpopular policy prescriptions.

'''That's absurd. How can you say that liberalism and abortion rights would benefit if their supporters gave up on the decision that protects reproductive freedom?'''

By removing the issue from the policy arena, the Supreme Court has prevented abortion-rights supporters from winning a debate in which public opinion favors them.

Since its inception Roe has had a deep legitimacy problem, stemming from its weakness as a legal opinion. Conservatives who fulminate that the Court made up the right to abortion, which appears explicitly nowhere in the Constitution, are being simplistic—but they're not entirely wrong. In the years since the decision an enormous body of academic literature has tried to put the right to an abortion on firmer legal ground. But thousands of pages of scholarship notwithstanding, the right to abortion remains constitutionally shaky; abortion policy is a question that the Constitution—even broadly construed—cannot convincingly be read to resolve.

Consequently, a pro-lifer who complains that she never got her democratic say before abortion was legalized nationwide has a powerful grievance. And there's nothing quite like denying people a say in policy to energize their commitment to a position. This point is not limited to abortion. For instance, the host of gay-marriage ballot initiatives in November came in direct response to the decision by the Massachusetts Supreme Court to treat same-sex unions as a judicial matter rather than a legislative one. And less than a year before the Court handed down Roe, it single-handedly reinvigorated a public commitment to capital punishment (which at that point was on the way out) by striking down the death penalty as then practiced; within several years states had rewritten their laws, the Court had backed down, and executions had skyrocketed to levels unseen in decades.

But the Court has not backed down on abortion. Thus the pro-life sense of disenfranchisement has been irremediable—making it all the more potent. One effect of Roe was to mobilize a permanent constituency for criminalizing abortion—a constituency that has driven much of the southern realignment toward conservatism. So although Roe created the right to choose, that right exists under perpetual threat of obliteration, and depends for its vitality on the composition of the Supreme Court at any given moment.

Meanwhile, Roe gives pro-life politicians a free pass. A large majority of voters reject the hard-line anti-abortion stance: in Gallup polling since 1975, for example, about 80 percent of respondents have consistently favored either legal abortion in all circumstances (21 to 34 percent) or legal abortion under some circumstances (48 to 61 percent). Although a plurality of Americans appear to favor abortion rights substantially more limited than what Roe guarantees, significantly more voters describe themselves as "pro-choice" than "pro-life." Yet because the Court has removed the abortion question from the legislative realm, conservative politicians are free to cater to pro-lifers by proposing policies that, if ever actually implemented, would render those politicians quite unpopular.

In short, Roe puts liberals in the position of defending a lousy opinion that disenfranchised millions of conservatives on an issue about which they care deeply while freeing those conservatives from any obligation to articulate a responsible policy that might command majority support.

But if the Court overturns Roe, won't we go back to the bad old days of back-alley abortions?

I doubt it. The day the Court overturns Roe, abortion will suddenly become a voting issue for millions of pro-choice voters who care about it but know today that the right is protected not by congressional politics but by the courts. At the same time, thousands of conservative politicians will face a dreadful choice: backtrack from the anti-abortion ground they have staked out and risk infuriating their pro-life base; or deliver on their promise to eliminate the right to abortion, and risk the wrath of a moderate, pro-choice majority. In the short term some states might pass highly restrictive abortion laws, or even outright bans—but the backlash could be devastating for conservatism. Liberals should be salivating at their electoral prospects in a post-Roe world. The simple fact is that a majority of Americans want abortion legal at least some of the time, and the majority in a democracy tends to get what it wants on issues about which it cares strongly. In the absence of Roe abortion rights would probably be protected by the laws of most states relatively quickly.

Sure, certain state legislatures will impose restrictions that would be impermissible under the Supreme Court's current doctrine; some women might have to travel to another state to get abortions. But the right to abortion would most likely enjoy a measure of security it does not now have. Legislative compromises tend to be durable, since they bring a sense of resolution to divisive issues by balancing competing interests; mustering a working majority to upset them can be far more difficult than rallying discontent against the edicts of unelected judges. In short, overturning Roe would lead to greater regional variability in the right to abortion, but this would be a worthwhile price for pro-choice voters to pay in exchange for greater democratic legitimacy for that right and, therefore, greater acceptance of and permanence for it.

'''Hang on a second. This is a constitutional right at stake. You don't argue that blacks should place their civil rights at the mercy of the majority. Why should women? Isn't fighting for fundamental rights a matter of principle?'''

Indeed it would be, if the right to abortion—like minority civil and voting rights—were unambiguously protected by the Constitution. But let's be frank: it isn't. The right to abortion remains a highly debatable proposition, both jurisprudentially and morally. The mere fact that liberals have to devote so much political energy to pretending that the right exists beyond democratic debate proves that it doesn't.

Lots of fundamental rights are protected by legal authorities other than the Constitution. For instance, the right not to be fired by a private employer because of one's race or religion is statutory, not constitutional. The right to abortion is in no way degraded by the fact that state laws may prove the best means of guaranteeing it. That simply reflects the absence of a national consensus about whether the right exists and, if so, what its limits should be.

'''This is an easy argument for a man to make. But could you be so blithe if you were a woman, and abortion rights were more than an abstraction?'''

I have no idea what losing my Y chromosome would do to my attitude toward this subject. But the costs of defending Roe have grown too high, and I'm just not willing to pay them anymore.

Do you seriously think that pro-choice liberals could ever come around to your view?

Self-confident liberals already would have. A liberal fear of democratic dialogue may make sense regarding social issues on which the majority is conservative. But it is a special kind of pathology that would rather demand a loyalty oath to a weak and unstable Court decision than make a case before one's fellow citizens on a proposition that already commands majority support. The insistence on judicial protection from a political fight that liberals have every reason to expect to win advertises pointedly how little they still believe in their ability to persuade.

The URL for this page is http://www.theatlantic.com/doc/200501/wittes.