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Benjamin Wittes on the Future of Roe

07.05.2005 10:40 | DISPATCHES

What if the new Supreme Court overturns Roe vs Wade? Would this be a disaster for women's rights and liberalism? Benjamin Wittes, in his article "Letting Go of Roe" in the January Atlantic Monthly (subscription required), argues that it would not, and that in fact Roe has weakened the case for abortion by removing it from the court of public opinion and putting into the (easily vilified) Supreme Court.

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....

...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... 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.


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