From Lefter, Warmer
With the O'Connor resignation, a story that was being written about a lot from January to April of this year, has just come back up. The Guardian today references the January article by Benjamin Wittes in Atlantic Monthly, which argues that Roe v. Wade is bad law, and suggests that for many "liberals," Roe v. Wade, perhaps the classic case that argues for how essential privacy is to the very definition of the liberal state, is now considered a liability.
I wasn't familiar with the article
by Wittes, and when I read it, I wasn't pleased with what I found. Wittes writes:
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 ...
...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.
...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. ... the right to abortion remains constitutionally shaky; abortion policy is a question that the Constitution—even broadly construed—cannot convincingly be read to resolve.
...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.
Wittes claims to be pro-choice, but it's hard not to suspect that he views reproductive rights as being of minor importance compared to party politics. This suspicion is encouraged by the fact that Wittes has a hard-on for the enormous electoral/political advantage that he predicts the overturning of Roe would produce for the Democrats:
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.
So basically, ditching Roe would be a great strategic move for Democrats. Keep this in mind the next time Kos tells you to compromise on abortion rights for the sake of the Democratic Party.
Like all party hacks, Wittes eventually shows his true colors, and his complete and appalling failure to understand why abortion rights matter:
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. ... 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.
So hey, ladies, if your state outlaws abortion, just travel to the nearest state where abortion is legal! I'm sure your fundamentalist parents and/or abusive husband will understand, and you can always put the travel expenses on your American Express card. So you see, there's really no problem! Unless the GOP-controlled congress decides to pass a federal ban on abortion, of course. But what are the chances of that?
Wittes asks himself a rhetorical question:
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.
This is a terrible argument for a liberal to be making - it reeks of 'strict constructionism' - and the fact that Wittes says the right to an abortion is morally 'debatable' demonstrates that he is no pro-choicer.
Liberals should not be fooled by such sophistry. The Roe
decision, insofar as it recognizes that the right to abort a pregnancy falls under the general right to liberty/privacy guaranteed by the Fourteenth Amendment, is a solid one. The Fourteenth Amendment states:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law ...
Justice Blackmun, in his Roe v. Wade
...personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty," ... are included in this guarantee of personal privacy.
It's hard to imagine a right more 'fundamental' or essential to the concept of liberty than the right to control what goes inside one's own body. If that right isn't covered by the due process clause of Fourteenth Amendment, what is?
Blackmun acknowledges that even such fundamental rights are not necessarily absolute. However, "regulation limiting these rights may be justified only by a 'compelling state interest' ". In Roe
, the Court correctly found that there is no state interest 'compelling' enough to justify the infringement upon women's privacy rights that result from prohibitions on (pre-viability) abortion.
Now, don't get me wrong: Roe
isn't perfect. But to the extent that it is flawed, it is flawed in favor
of the anti-choice movement. Blackmun's opinion repeatedly states that the state has an interest in protecting 'potential life', an interest which becomes compelling at the point of viability. But he gives no argument for this claim, and it certainly is not self-evident that such an interest exists. This recognition of the supposed state interest in protecting potential life was later invoked by Kennedy in Planned Parenthood v. Casey
to justify various restrictions on abortion.
Ideally, we'd have a Supreme Court that unambiguously affirmed a woman's right to choose for herself whether to procreate - the right, as the Court decided in Eisenstadt v. Baird, "of the individual ... to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person
as the decision whether to bear or beget a child." That, or a constitutional amendment explicitly recognizing abortion rights.
But for now, Roe
is the best guarantee of reproductive freedom that we have. It is absolutely vital that it remain in effect. Senate Democrats had better not be planning on sacrificing Roe
for the sake of electoral advantage, as Wittes recommends. If it turns out that they are, then the Democratic Party will have proven itself, once and for all, to be completely devoid of principle, and an unwelcome place for those who care about justice and morality more than party politics.