Denverite: Roe Anniversary Day: "Scott, if I recall correctly, you’ve done a (very good) post in the past defending Roe on its merits. You might link to it?"
Scott Lemieux (2005): Why Roe Was Right: Foreword: "I promise that the name of this blog will not be changed to 'Scott replies to Matthew Yglesias posts about judicial policy-making', but since I promised (threatened?) a legal defense of Roe v. Wade a couple of months ago before being derailed by grading and the flu, I thought I would use this set of questions as incentive to finally get the thing written.
Before I start my defense of the outcome of Roe as constitutional law, let me deal with the last two points first:
If you’re interested in more detail I can email you the relevant dissertation chapter, but Roe clearly increased access to abortion, especially for poor women and women of color. This sociological distribution is indeed counterintuitive; as Roe’s critics-from-the-left often point out, the Court’s decision guaranteed only a “negative” right to abortion, and the Court subsequently refused to find a constitutional right to government funding of abortions. Despite this, formally legal abortion is far more important to relatively disadvantaged women, as the data make clear. First, affluent white women have de facto access to abortion irrespective of the formal legal regime; formal barriers to abortion only affect relatively disadvantaged women, so removing barriers increases access to the latter even if the policy is suboptimal. Second, a network of providers willing to provide subsidized abortions has helped to fill the gap left in states where abortion isn’t funded for poor women. As to whether this is a good thing, I certainly think so, as I believe that reproductive freedom is central to women’s freedom and equality, and (like most people in practice) do not think that a pre-viability fetus is a “person” legally or morally. In addition, Roe has the virtue of making American abortion policy actually consistent with the rule of law. The only politically viable alternative to legal abortion–abortion-on-demand for affluent women and let-them-use coathangers for poor women–is completely indefensible from any normative perspective. No critic of Roe who is unwilling to deal with the fact that abortion laws were not and would not be enforced equitably should be taken seriously.
The question of whether Roe has been good for liberalism is considerably more complex. The entanglement of causal factors in voting behavior makes it a difficult question to address. Nonetheless, I reject the claim that Roe is a net negative for progressive politics in the U.S. First of all, the burden of proof is clearly on those who claim that Roe is a net negative, given that both Roe itself and the policy position it embodies are very popular. Most people making this argument, as Dave and I have both discussed recently, tend to cherry-pick constituencies and states that have shifted red while ignoring those that have shifted blue. We don’t know, but it seems obvious to me that Kansas and Alabama and Nebraska aren’t about to start voting Democratic if they become pro-life (as Yglesias has pointed out, to most working-class cultural conservatives gun control and homophobia are more important than abortion), but New York and California certainly might start voting Republican. Second, the timeline isn’t really consistent with the claims made by liberal critics of Roe. The key elections for entrenching New Right and the South within the Republican Party are 1968 and 1972, both preceding Roe. While Nixon didn’t incorporate economic quasi-libertarianism, he exploited the cultural concerns of the New Right (which we are discussing here) very effectively. I think that school prayer and civil rights are far more important than abortion, and the time period of the New Right’s ascent is consistent with this view. Finally, I will note that even if one accepts the dubious proposition that abortion is a bad issue for Democrats, there’s no free ride. Opposition to abortion will materialize no matter what institution makes the policy. If you want to say that Democrats should just abandon abortion rights, fine, but getting rid of Roe will greatly restrict the abortion access of underprivileged women without defusing it as an issue. (I don’t even think that it would matter much to Supreme Court appointments; overturning Roe would hardly prevent it from remaining an issue. And, at any rate, one’s position on abortion is a pretty good synecdoche for one’s general ideological outlook in most cases, and a strict libertarian isn’t going to be appointed to the Supreme Court anytime in the near future.)
OK, those are the relatively easy questions. Next: defending Roe as constitutional law.
One more thing that an MY commenter reminded me of–would Roe hurt the GOP at the level of presidential politics? Maybe, but while I used to think that I’m far from sure. The Dems would increase its popular vote base, probably, but whether you win NY and CA by 15 points or 35 (or WA by 5 or 20) doesn’t matter. What red state would the Dems win if Roe was overturned? There aren’t a lot of obvious candidates. A lot of nominally pro-choice wealthy surbabnites will figure out that they can get abortions anyway, and they could sure go for some of those upper-class tax cuts. Returning the issue to the state legislatures gives lots of new opportunities for wingnut groups to mobilize. And once that cycle plays itself out (if ever), movement conservatives can be worked into a lather by the gays and SpongeBob Squarepants and Hitlery etc. etc. etc. Bascially, it seems to me that you’re accepting certain bad consequences for the uncertrain possibility of a marginal improvement of Democratic presidential prospects. Pass.
Scott Lemieux (2005): Roe Was Right (Pt.I): "Now that this argument has officially become contrarian, I will explain why Roe v. Wade was correct on the merits.
Before I begin, a few things to note about my argument. First, I’m defending the outcome of the case, as opposed to the craftsmanship of the majority opinion. Second, I’m not a legal formalist; I’m not claiming that Roe is “right” in the sense that no person could reasonably disagree. Like any constitutional issue of any interest, it’s not “correct” in the sense of being unassailably true. My argument is that its outcome is plausible and carries any number of pragmatic benefits. Finally, I don’t claim that these arguments are original; they will be familiar to people who know the relevant literature. My objective is to synthesize the legal arguments in favor of Roe. The first post will discuss the extensive doctrinal backing for a fundamental right to procreative autonomy within American constitutionalism. The second will explain why this right should be applied to abortion laws. Finally, I will discuss the more pragmatic benefits of Roe.
The most common argument launched against Roe is that it was “invented” by the Court, or “comes from nothing.” In discussions in blog comment sections, liberals don’t seem to be able to respond to these arguments. And yet, they are plainly false. Rights to reproductive autonomy are deeply embedded in the American constitutional tradition, appearing within many decades of constitutional state and federal doctrine. (David Garrow’s Liberty & Sexuality provides an excellent account.) The core are three bedrock cases–Meyer, Skinner, and Griswold–that were supported by a cross-ideological spectrum of justices and are well-settled. There is simply no question that procreative autonomy is a fundamental right in the American constitutional tradition; the only question is whether it applies to abortion. As Daniel Farber points out:
Despite the vehemence of the attacks on Roe, it seems clear that the Court was correct in classifying procreative rights as fundamental. Although these rights were not discussed specifically in connection with the fourteenth amendment, historians suggest that Republicans, who drafted and enacted the amendment, considered rights relating to the family fundamental. American society has traditionally drawn a distinction between public matters involving government and the marketplace and private matters involving the family. As Professor Cox, who believes that Roe was wrongly decided, concedes, “it is hard to think of a more fundamental invasion of personal liberty than to tell a woman that she must or may not bear a child.” As the Roe Court pointed out, a line of Supreme Court decisions going back many years had granted parenthood and procreation a fundamental constitutional status. That the Court was not simply imaginatively rewriting precedent is indicated by the number of lower court judges who had correctly anticipated Roe on the basis of similar reasoning. Popular consensus also supported the Roe Court’s recognition of the right to an abortion, with a large majority of the public favoring legalization of abortion under at least some circumstances.
There are two additional variants of this silly ahistorical argument against Roe you should be aware of:
Invoking the word “penumbra”: The most common tactic is to mock the “emanations which form penumbras” phrase. This comes, of course, from Griswold. All it means is that the presence of some constitutional rights implies the existence of other rights necessary to protect the codified ones. To argue that this method of interpretation is somehow kooky or illegitimate is simply ignorant nonsense. The structuralist interpretation of the Constitution is perfectly common, and can be seen in any number of landmarks of American constitutional law (for example, Marshall’s argument that states could not tax a national bank, as this power would allow the states to effectively nullify enumerated federal powers.) Unquestioned rights–such as the freedom to belong to political associations–are “penumbral.” The Rehnquist Court’s “sovereign immunity” doctrine is explicitly based on penumbral interpretations. And, of course, Douglas was clearly correct about Connecticut’s laws, which banned the use of contraception. If enforced vigorously, they would make the Fourth Amendment a dead letter; the state would effectively have the unlimited authority to search houses. This wouldn’t happen; instead, these laws would be sporadically and arbitrarily enforced against unpopular individuals, which of course is a textbook violation of the due process and equal protection clauses of the Fourteenth. (This is equally true of the sodomy laws struck down in Lawrence.) While there is no explicit right to “privacy” or “procreative autonomy” in so many words, it is clearly implied by the language of the Bill of Rights and the 14th Amendment. Now, of course, one can disagree with the application of structuralist reasoning in a particular case, or subscribe to a different grand theory. But to pretend that this interpretive method was invented by William Douglas in 1965, or is generally discredited, is absolutely ridiculous.
Substantive Due Process: The somewhat stronger doctrinal argument against Roe is that it relies on a “substantive due process” argument; that is, that some laws by their nature are so arbitrary that they could never be enforced in a manner that could satisfy procedural requirements. I have a certain sympathy with John Hart Ely’s argument that “substantive due process” is akin to “green pastel redness.” If I were a Supreme Court justice and had the votes, I would overturn the Slaughterhouse cases and locate the right to procreative autonomy in the “privileges or immunities” clause of the 14th. Having said that, judges do not start from scratch; they work within constitutional traditions, and the tradition that some laws are too arbitrary to be constitutional even if enforced with ordinarily fair procedures is deeply embedded within American constitutionalism. Every current Supreme Court justice accepts it; the only question is to what cases is applies. While this doctrine was used by the Lochner-era court to strike down economic regulations, there’s no danger of a “slippery slope” back to this era anytime soon, and pace Robert Bork there’s nothing that logically requires one to accept Lochner of one agrees with Roe. (This point is blindingly obvious; using an interpretive theory does not commit one to previous applications of a similar theory by a different justice and a different case.)
The claim that Roe (or Griswold) were invented ex nihilo is, then, transparently wrong. One can argue against these theories with different grand theories, but the right adduced in Roe has very deep historical roots. But this fact does not, of course, end the discussion. As Farber notes, my argument about s.d.p. above cuts both ways; one can accept the general theory without believing it is correctly applied to abortion laws. Griswold and Lawrence are easy cases; Roe is not. Next, I will explain why the fundamental right to procreative autonomy should render the abortion laws of American states in 1973 unconstitutional.
 Daniel Farber. “Legal Pragmatism and the Constitution,” Minnesota Law Review (72: 1998, 1366-7.)
Scott Lemieux (2005): Roe Was Right (Pt. II): "In my previous post, I argued that Roe v. Wade did not come 'from nothing', but was a logical application of an extensive constitutional tradition.
In an excellent post, sympathetic Roe critic Publius (via Julie Saltman) accepts the existence of this tradition–documenting every landmark case–but nonetheless rejects the argument because he is a textualist. As I mentioned, this is fair; I don’t deny that one can argue against Roe using any number of abstract grand theories. Publius offers two options for Roe justifiers: “(1) textually justify the right to privacy; or (2) use stare decisis.”
I don’t believe that there are only two options; first of all, I don’t think that Roe defenders must use Publius’s preferred grand theory, as opposed to another one. In addition, the approach I outlined yesterday is largely a stare decisis approach, although this may suggest that I think the cases should be applied although they were wrong, and I believe Skinner (striking down a law permitting the state to sterilize petty criminals), Griswold (arbitrarily enforced contraception laws) and Lawrence (arbitrarily enforced “sodomy” laws) were all correct. Anyway, with these caveats it might be useful to follow Publius’s roadmap. I could argue why I think structuralism is a better grand theory than textualism, or why textualist critiques of Griswold are flawed (how can laws that are concededly “unenforceable” be consistent with even a narrow reading of the due process clause?) But I’ll leave that to others, for two reasons. First, I don’t believe in the existence of grand theories that produce determinate results in contentious constitutional cases. Second, are more importantly, no justice in the history of the Supreme Court (including Hugo Black, who joined the unanimous majority in Skinner) has ever consistently applied “textualism” (or any other grand theory.) I don’t believe that Roe should be held to a higher standard than other cases. If, like Robert Bork, one believes the history of judicial review is based on the wrong grand theory and therefore illegitimate, it becomes rather difficult to argue why Roe, in particular, should be singled out. So I’ll let someone else pursue this angle. For me, a tradition of plausible arguments agreed to by justices across the ideological spectrum is sufficient. But does this tradition apply to abortion laws?
As I mentioned, abortion is without question a harder case than Griswold or Lawrence. I believe that women have a right to reproductive freedom, and unlike Byron White, I do not believe that abortion involves merely the “convenience” of a woman. But that isn’t the end of the analysis. The reason for this is obvious: the potential argument that the fetus is human life that the state can protect, which goes beyond the consensual behavior of Griswold (or the severe invasion of Skinner.) Indeed, I would go so far as to say that if the argument that the fetus is a human life that must be protected is accepted, Roe is clearly wrong. If a state passed a law, based on a consensus view that the fetus was life and had to be protected, and was willing to enforce these laws equitably, as I judge I would uphold such a law as constitutional however much I disagreed with the underlying moral view.
But, of course, we can stop right there. The abortion laws struck down by Roe are not plausibly based on the premise that the fetus is a human life, and these laws were not enforced equitably. Let’s take these two points separately:
Blackmun’s opinion did a terrible job of both connecting its voluminous historical evidence to its legal arguments, and of tracing the extensive legal tradition that supported Roe. He did bring up one more important point, however: there is little evidence that state abortion laws, most of which dated from the late 19th century, were primarily concerned with fetal life. Both concern about the danger of the procedure (now, of course, obsolete) and patriarchal conceptions of female sexuality were more important. And, of course, this was true of even more recently revised abortion laws, and of current proposals for new abortion laws. As I have written before, abortion laws tend to be a legal, moral, and ethical shambles that are inexplicable unless their primary objective is regulating the sexual behavior of (some) women. Laws designed to protect fetal life have no reason to exclude women from punishment, or contain rape, incest or health-of-the-mother exceptions, or to permit women to obtain abortions across state lines. As the nature of these laws indicate; there is nothing remotely resembling a consensus that a fetus is a human life, and only a tiny minority of the minority that nominally accepts this position acts is a way that is consistent with this belief. For this reason, American abortion laws are directly comparable to Griswold and Lawrence: they are primarily attempts to regulate consensual sexual behavior. Perhaps these laws would pass constitutional muster if fairly applied. But this brings us to point number 2:
Abortion laws in the United States have never been applied equitably, or anything remotely approaching this. As I have written before, the definitive account can be seen in Chapter 2 of Mark Graber’s Rethinking Abortion. When I say that abortion laws aren’t equitably applied, I don’t mean this in the sense that any law in any context short of utopia is unfairly applied. Rather, I mean that affluent white women had virtually universal de facto access to safe abortions performed by competent doctors in hospitals. Such grey market abortions could have been easily stopped–you don’t have to march a respectable ob-gyn out of work in handcuffs many times to dissuade him, and these abortions left a paper trail. The laws weren’t enforced because there was no social will to enforce them. Just as the effect of contraception laws was to prevent to distribution of free contraception to the poor, the effect of abortion laws was to deny abortion to poor women and women of color. It doesn’t exactly require a radical reading of the due process and equal protection clauses of the 14th Amendment to see this legal framework as intolerable. When one considers how abortion laws are actually applied, the case for their constitutionality is extremely weak. In addition, this selective enforcement makes clear that protecting fetal life was not particularly important to legislatures (unless fetuses only become intrinsically valuable when they are carried by poor women or women of color.)
So, in sum, I believe there to be a very strong constitutional case against the abortion laws struck down by Roe. There exists a longstanding constitutional tradition on its behalf, and the best argument against the applicability of this tradition is plainly inoperative when one considers the origins, text, and application of the existing laws. While one can imagine, in the abstract, abortion laws that would pass constitutional muster, this is irrelevant in the current American context. Judges must evaluate the laws that actually exist. However, the course I’ve taken here means that I can’t end here. Since the text and traditions of American constitutionalism permit but do not indisputably compel the outcome in Roe, a pragmatist must further consider the consequences of the decision for democracy, and also whether the effect of Roe will be more equitable than the laws it nullified. I will turn to these questions in my last post.
Scott Lemieux (2005): Roe Was Right (Pt. III): The Question of Democratic Legitimacy: "In the previous two posts (1, 2) in defense of Roe v. Wade, I argued that 1)Roe is a logical application of a long-standing constitutional tradition, and 2)The arguments that would distinguish abortion from the other cases were not convincing.
While existing doctrine does not compel judicial intervention in the way a restriction on political speech would, the doctrine certainly permits it. While I am not a believer in grand theories of constitutional interpretation (at least to the extent that they are supposed to end jurisprudential debates), I am enough of a formalist to believe that inferred rights place a very stringent burden of proof of the judiciary. In addition, I don’t find stare decisis arguments of the kind presented in Planned Parenthood v. Casey very compelling. I don’t think that overturning Roe would damage the legitimacy of the Supreme Court. To me, the key is the Carolene Products standard the Supreme Court has used to evaluate civil liberties claims for several decades: namely, the idea that the Supreme Court should be especially willing to protect groups excluded from the political process and correct cases where the democratic process malfunctions. From this perspective, the case for Roe becomes highly compelling:
The burdens inherent in carrying an unwanted pregnancy fall, of course, exclusively on women, and abortion cannot be adequately discussed outside of the context of historical gender discrimination. John Hart Ely, who used Carolene Products to develop a sophisticated theoretical defense of Warren Court jurisprudence, argued that Roe was different from cases such as Miranda and Brown because women, being an enfranchised majority, could protect their own interests in legislatures. Needless to say, this is quite clearly mistaken. Most abortion laws were enacted in a period when women were entirely disenfranchised. Even leaving that aside, even after the passage of the 19th Amendment women faced significant legal and social discrimination, and have been underrepresented in legislatures and face barriers of entry to other aspects of the political process as well. Abortion is, in fact, a classic Carolene Products case. The fact that women were not part of legislatures that passed abortion laws, allowed them to be enforced arbitrarily, and refused to amend them both lacked adequate female membership, and the inequities facing women more broadly, provides a compelling justification for Roe. Gender inequities are not the only failures of democratic processes involved in abortion legislation. The inequitable enforcement of abortion laws creates perverse incentives to keep abortion laws on the books; the people most affected by abortion laws are those with the least political power. As a result, most state legislatures didn’t respond to clear shifts in public opinion. Abortion laws that were rigorously enforced would, at least, be entitled to a very strong presumption of constitutionality. But existing (and any politically viable future legislation) abortion legislation was not, and abortion laws that were rigorously enforced would almost certainly be quickly repealed. Roe‘s critics portray the courts as imperial overloads thwarting democratic majorities, but this isn’t a good description of what’s going on with Roe. If anything, the court’s opinion was closer to public opinion than state legislatures in 1973, and Roe has consistently enjoyed strong public support. In addition, abortion law in legislatures was not an example of a strong social consensus being embedded by decision-makers, but instead is a history of delegation and deferral to other actors. The most common legislative reform tactic was to pass legislation that allowed medical professionals to justify performing or denying almost any abortion absent a grave emergency; in other words, delegating decision-making authority to protect doctors while not providing due process for women seeking abortions. Decisions of democratic legislatures are entitled to judicial deference, but the decisions of medical review boards rather less so.
These points create an extremely compelling defense of Roe. The court did not cut against a social consensus, and the political processes it intervened in were profoundly defective. These systemic problems do not warrant judicial intervention where run-of-the-mill political issues are involved, but reproductive rights have long been recognized as fundamental by the court. Again, this would not be sufficient if the law prevented judges from intervening, but it did not. The existing law clearly makes Roe plausible, and none of the typical arguments for judicial deference in the face of uncertainty apply. The abortion laws that existed in most states in 1973 were unconstitutional, and the Supreme Court was right to strike them down.
Scott Lemieux (2006): Men Overboard: "The confirmation of two conservative Supreme Court justices and the passage of a draconian abortion ban in South Dakota have again thrown the precarious state of reproductive rights in the United States into sharp relief. It’s a serious moment--which makes the continued preference for clever counter-intuition and abstract debates shared by many of the nation’s prominent, avowedly pro-choice pundits all the more troubling.
It is difficult to know when a “contrarian” idea has been repeated so much as to become the new conventional wisdom. At least in prominent liberal media outlets, however, the argument that pro-choicers would be better off abandoning Roe v. Wade has probably crossed the line. In The Atlantic Monthly, Bejamin Wittes’ 2005 article asserting that Roe v. Wade “has been deeply unhealthy for abortion rights” was followed up by a similar (although more detailed and nuanced) article in the June Atlantic by Jeffrey Rosen, also a prominent Roe critic in The New York Times and The New Republic. Richard Cohen opined in the pages of The Washington Post (after sniffing that he “no longer see[s] abortion as directly related to sexual freedom or feminism”) that liberals should “untether abortion rights from Roe.” Slate’s William Saletan took to the Post op-ed pages also to argue on behalf of “moving beyond Roe” and to dismiss the decision as “obsolete.” The argument usually contains an added political component — that overturning Roe would prove a boon to Democrats by waking a majority–pro-choice electorate from its apathetic slumber.
The claim that overturning Roe would be no big deal for reproductive freedom and a boon to progressive politics may be ossifying into strange center-left conventional wisdom, but it’s still wrong. These arguments are almost certainly too optimistic about the legal framework likely to emerge if the decision is gutted or overturned. And, not surprisingly given the extent to which affluent men safely ensconced in liberal urban centers dominate the liberal pundit class, the arguments also greatly understate or ignore the stark class and geographic inequities in abortion access that would inevitably manifest themselves in a post-Roe world. All the while, they greatly overstate the alleged political benefits of turning abortion into 51 fierce battles at the state and federal level.
The Impact on Reproductive Rights
In its strongest form, the anti-Roe, pro-choice argument holds that ending constitutional protections for abortion would have little effect on access to it. Rosen, in his recent Atlantic article, suggests that “access to abortion wouldn’t necessarily become less widely available than it is now.” The implication of the argument is that support for legal abortion has become sufficiently well-entrenched that it will (with the exception of a handful of regional outliers where abortion is already all but de facto banned) easily survive the overturning of Roe.
Stated this way, the argument is transparently incorrect. According to data compiled by the Center for Reproductive Rights, were Roe overturned, abortion would immediately become illegal in 13 states, and there would be significant risk of new abortion bans in 20 other states. Obviously, to go from abortion being legal in all 50 states to a situation where abortion is illegal in 15 to 30 states cannot be seen as anything but a significant blow for reproductive rights. The question is not whether overturning Roe would be bad for reproductive rights, but how bad it would be.
The somewhat weaker claim is that while overturning Roe would be suboptimal, the effects on abortion access would be very modest, and legislative outcomes would represent a stable compromise that pro-choicers should be able to live with. This argument is premised on a number of fundamental errors.
Although one can quibble about how optimistic to be, Roe’s centrist critics are right that a significant number of abortions will continue to be performed even if the decision is overturned. Roe wasn’t terribly important to affluent women, who, as scholars such as Mark Graber have demonstrated, either had the connections necessary to obtain abortions on the gray market or the resources to travel to states where abortion was formally legal. Affluent women in urban centers have access to safe abortions under any legal regime. But for poor women, especially those in rural areas, Roe matters a great deal.
Because it did not contain a guarantee of state funding, Roe has often been portrayed as conveying meaningful rights only to the middle class. But according to the most recent data compiled by the Allan Guttmacher Institute, in 2000 57 percent of women obtaining legal abortions lived at less than twice the federal poverty level — showing that even the “negative” right declared in Roe significantly bolsters access for poor women. While it is difficult for poor women to get abortions in some states, this difficulty has sometimes been exaggerated, and the fact that regulations in the post-1992 era of Planned Parenthood of Southeastern Pennsylvania vs. Casey already significantly restrict abortion access in various places is a compelling argument against the further gutting of judicial protections, not in favor of it. While a few states (including, as Rosen emphasizes, South Dakota) currently have a relatively small number of abortion clinics, the difference between having three abortion clinics in a state and none is a distinction of actual significance. The erosion of abortion access that has taken place should not be used to bootstrap arguments that make much more erosion inevitable. Whether conservative states respond to the overturning of Roe by banning abortion outright or passing draconian regulations, the outcome would be the same: little effect on affluent women, but severe effects on poor women lacking the knowledge or resources to find doctors who can interpret the law in a favorable manner.
Abortion centrists generally see formally legal but highly regulated first-trimester abortion as an acceptable (and, in some cases, desirable) compromise. Rosen claims that “when the dust settles, in five or 10 or 30 years, early-term abortions would be protected and late-term ones restricted.” His prediction demonstrates the extent to which abortion centrists have uncritically accepted the rhetorical frames of the anti-choice lobby. Most abortion regulations, in fact, have nothing to do with the age of the fetus, and Roe and Casey permit late-term abortions to be regulated (with a health exemption) anyway. More typical abortion regulations include such impediments as waiting periods, parental consent and notification, and restrictions on abortion clinics. All of these regulations compound inequities inherent in any legal restrictions on abortion, and they have undesirable effects even if they don’t result in women being thrown in jail.
It is regrettably true that under Casey’s vague “undue burden” standard, such regulations have already begun to proliferate. But removing any legal restrictions on the ability of states to regulate abortion would make things worse, not better, and would allow creative anti-choice legislators to devise regulatory schemes that have the same effect in practice as abortion bans. Ohio, for example, passed a regulation requiring clinics to obtain a “written transfer agreement” from a surgical hospital in the case of an emergency; the state denied a waiver to a Dayton abortion clinic that couldn’t obtain one and ordered it to close. Though the neutral justification for such a regulation is farcical, the 6th Circuit Court of Appeals remarkably claimed that the regulation did not constitute an “undue burden.” To preserve any meaningful reproductive rights against such tactics, courts will have to become more, rather than less, vigilant.
Currently, legislatures are prohibited from passing laws (such as the spousal notification provision struck down in Casey) transparently designed to limit abortion access rather than serve some legitimate state interest. If Roe is overturned, courts will no longer be able to strike down such laws — and it is precisely these kinds of regulations that must be the focus of any productive assessment of the consequences of overturning Roe. Moreover, contrary to the oft-heard but bogus claim that overturning Roe would “return the issue to the states,” it’s also possible that Congress could enact federal versions of such measures, rendering universal the chilling effects of arbitrary abortion regulations.
It’s also worth noting that the centrist pro-choice position is (to borrow O’Connor’s famous phrase) on a collision course with itself. Saletan and Rosen extol the virtues of regulating late-term abortions as the centerpiece of an abortion compromise. But the most common and popular abortion regulations in fact make first-trimester abortions considerably harder to obtain, by compelling women to navigate an irrational regulatory obstacle course. (In Mississippi, second-trimester abortions among women relying on in-state providers increased more than 50 percent after the state enacted a waiting period requirement.) The contrarian anti-Roe position contains internal contradictions its adherents never resolve.
These pundits cite public opinion polls showing support for their pet compromise policy — legal first-trimester abortions — as evidence against worrying about Roe’s disappearance. One baffling aspect of this debate is the extent to which people who should know better assume that legislative outcomes represent unmediated manifestations of popular opinion. In fact, American legislatures are majoritarian in neither theory nor practice (indeed, although public opinion about abortion in 1973 was essentially the same as it is today, abortion was illegal in 46 out of 50 states). And it is likely that several aspects of legislative politics will skew outcomes toward an anti-choice position. First, the de facto exemption from abortion laws that affluent women enjoy means that the women with the highest stake in the outcome of the debate have the least political clout. Second, anti-choice activists can take advantage of the paradox in public opinion, where majorities oppose the outright criminalization of first-trimester abortions but also favor regulations that collectively have the same impact as an outright ban. And third, because smaller, more rural states are more likely to have culturally conservative legislators, federalism will tend to make legislative outcomes more anti-choice than national opinion surveys would suggest.
The Political Impact of Overturning Roe
The claim that overturning Roe would not be a significant blow for reproductive freedom, therefore, is plainly wrong. But there is another element to the pro-choice, anti-Roe argument: Overturning it will be good for Democrats and progressives. For millions of pro-choice voters complacent in the knowledge of abortion’s constitutional protection, so this argument goes, the overturning of Roe would suddenly make abortion a voting issue. Moreover, Roe’s fall would, in Rosen’s words, “put pro-life legislators in an agonizing position,” forcing them either to deliver uncompromising abortion bans to base voters or to incur their wrath through appeals to swing voters. Though this argument has a surface plausibility, balancing the relevant factors suggests against abandoning Roe for political reasons.
Arguments about the immense political benefits to be reaped if Roe is overturned tend to be premised on vastly overstating the effects of abortion on voting behavior. Voters cast ballots based on a complex matrix of issue positions and personality heuristics; the difference that any particular issue makes is often very small. The idiosyncrasies of American politics would, moreover, mitigate any post-Roe electoral bounce for Democrats. The states in which Roe’s overturning would be the most clearly unpopular are also the states where the Democrats are already dominant. It’s far from clear which state the Democrats lost in 2004 that they would win if Roe were overturned. The congressional situation is similar. The Senate’s gross malapportionment overrepresents states where overturning Roe would do little damage to the GOP, and sophisticated computer gerrymandering along with the other advantages of incumbency in the House of Representatives make for very few contested seats no matter which issues are in play. In other words, overturning Roe might help the Democrats in generic national polls, but much less so in terms of taking back control of federal institutions.
Speculations about the political benefits of overturning Roe also assume it would be overturned in a forthright manner. This is, however, a highly questionable assumption. Much more likely is what we’ve already seen happen: a brick-by-brick dismantling that produces virtually the same policy effects without even the modest Democratic political benefits to be derived from the popular reaction to a single dramatic decision. The championing of allegedly “reasonable” regulations of abortion by centrist pro-choicers has handed a loaded weapon to opponents of abortion rights, who can regulate Roe to death while keeping the political backlash to a minimum.
Another commonly heard argument is that Roe has been bad both for choice and for the Democrats because judicial interventions into contested political issues produce a much greater backlash than legislative interventions. Wittes, for example, says that “since its inception Roe has had a deep legitimacy problem, stemming from its weakness as a legal opinion” and that “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.” Both sides of the abortion debate regularly make this argument, and its only flaws are that there’s no compelling theory and no empirical evidence to support it.
Consider, first, the theoretical premises underpinning Wittes’ argument. He makes a claim — also famously made by Ruth Bader Ginsburg — that Roe created a backlash because of its poor judicial craftsmanship. This is, to put it mildly, implausible. In general the public ignores legal reasoning and evaluates judicial opinions based on results; Roe in particular has always had a similar degree of public support as the legalization of first-trimester abortions. Wittes also has — as do most proponents of the countermobilization hypothesis — a romanticized vision of the legislative process and a reductionist conception of how judicial review operates. The modest abortion liberalization reforms enacted by a minority of state legislatures before 1973 are better described as logrolling among legal, medical, and legislative elites than as painstaking deliberative compromises. Judicial policy making, meanwhile, often involves balancing competing interests rather than absolutist rights claims — Planned Parenthood v. Casey is a paradigmatic example of this. And there is no reason to believe that religious and ethical arguments about abortion are any less “divisive” than legal arguments.
But, ultimately, the proof of the pudding is in the eating. The pre-Roe period in state legislatures does not in any way comport with the romantic myths now being peddled by anti-Roe centrists. Far from being satisfied with legislative compromises, anti-choice activists were so well-mobilized in response to a few legislative reform laws that liberalization at the state level was essentially dead by the time Roe was handed down in January 1973. Debate in the state legislatures was divisive: In New York, Governor Nelson Rockefeller had to veto a 1972 re-criminalization bill that passed after a rancorous debate featuring an anti-choice legislator waving a fetus in a jar on the assembly floor. Neither women’s groups nor anti-choice groups were happy with the common compromise legislation. The National Review wrote more about abortion in the three years before Roe than in the three years after. Meanwhile, the Canadian Supreme Court created the most liberal abortion regime of any Western democracy and yet, despite that judicial intervention, abortion is not a particularly salient issue in Canadian politics. The evidence is overwhelming that abortion is a divisive issue in the United States because it is divisive, not because of procedural objections to the methods by which policy has emerged.
Abortion centrists appear to take cultural conservatives at their word when the latter say they’d be mollified if only the courts stepped out of the debate. But cultural reactionaries employ anti-elitist rhetoric against any and all institutions they are hostile to, not just against “activist judges.” Consider the anti-gay constitutional amendment in Colorado struck down by the Supreme Court in Romer v. Evans, which was passed as a response to the protection of gay rights by democratically elected city councils. Affirmative action and the recent eminent domain decision in Kelo are also instructive examples: Conservatives are able to mine fury against courts that refuse to overturn the policies of democratically accountable officials. Arguments against “judicial activism” are equally applicable against “elites” and “Congress” and “those bureaucrats down at the state capital.” To believe this resentment would go away if only the courts gave up protecting abortion is to be stuck in a dream-like state in which politics functions as it does in bad sixth-grade civics textbooks.
A related argument is the claim that the use of litigation has made pro-choice groups lazy and complacent about reproductive freedom, and that returning abortion to the legislatures would mobilize pro-choice voters and toughen the movement. To the extent that this argument relies on claims about the demobilizing effect of litigation, the evidence is scant. Recent legal and political science scholarship has convincingly rebutted assumptions that litigation and other forms of political activism exist in a zero-sum struggle for resources; in fact, one often positively builds on the other. Nor is the argument persuasive in the specific case of abortion. Bill Clinton’s veto of legislation banning “partial-birth abortion” — legislation that was both very popular and likely to be struck down by the courts anyway — was hardly a sign of a movement lacking in political clout. Abortion was one of the few issues that Clinton never crossed his base on, a fact that ill supports the notion that Roe has weakened the pro-choice movement.
Arguments about the political benefits of overturning Roe ultimately prove too much. By the same logic, one can argue that allowing Social Security to be privatized would create tensions in the conservative coalition and a backlash that might help Democrats politically. This is hardly good reason to hope that it happens. The fact that commentators making the political case for abandoning Roe never apply the same logic to other issues reflects a general tendency to take women’s rights less seriously. That same unseriousness is revealed by the fact that pundits searching for issues on which Democrats can appeal to social conservatives are more likely to cite abortion than, say, church-and-state issues, where the liberal position is far more unpopular and compromises would have far less direct impact on people’s lives. Ultimately, to call these contrarian arguments “pro-choice” is a non sequitur. They’re only compelling if the value of protecting a woman’s right to choose is accorded almost no weight.
Indeed, what is finally most intolerable about the new anti-Roe consensus is just this willingness to sacrifice the fundamental rights of others while patting oneself on the back for making noble compromises. It is certainly easy for men living in blue state urban centers — who know that no woman in their family or social circle will ever be denied a safe abortion — to casually dismiss the importance of the rights of poor women in the two dozen states at high risk of banning or severely restricting access to abortion in a post-Roe world. The legislative “compromises” celebrated by the contrarians involve sacrificing the rights of those women and allowing legislators to severely restrict abortion without paying a significant political price. This is an outcome that should not be acceptable to any progressive. Core rights are not a field where expediency should trump principle, and a moment like this is no time for elite commentators — if they really do support reproductive rights — to waste ink on cute debating games.