This is a difficult moment for Roe v. Wade to have fallen.
The question naturally arises: Are governors and state legislators who opposed lifesaving vaccination in the middle of a pandemic really equal to Solomonic choices about the reach of human autonomy and worth of nascent life?
Yet some ill-timed events are also inevitable. Roe has always been vulnerable because it was so poorly argued. Its medical line-drawing was fundamentally arbitrary. Its legal reasoning was uncompelling, even to many liberals. “The failure to confront the issue in principled terms,” said Archibald Cox, President John F. Kennedy’s solicitor general, “leaves the opinion to read like a set of hospital rules and regulations. … Neither historian, nor layman, nor lawyer will be persuaded that all the prescriptions of Justice [Harry] Blackmun are part of the Constitution.”
The breathtaking overreach of Roe has been cited as the cause for an enduring political backlash. And one legal mind who famously did the citing was Justice Ruth Bader Ginsburg, a strong supporter of abortion rights. Speaking at the University of Chicago Law School in 2013, Ginsburg faulted Roe as being too sweeping, giving the pro-life movement “a target to aim at relentlessly.” Abortion rights, she argued, would have been more deeply rooted had they been secured more gradually, in a process including state legislatures — which in the early ’70s were moving toward liberalized abortion laws. “My criticism of Roe,” she said, “is that it seemed to have stopped the momentum that was on the side of change.”
Roe has been one of the first and largest sources of ideological polarization. Tens of millions of Americans believe abortion is a fundamental right. Tens of millions believe developing human life has moral worth and should have legal protection.
In 1973, the Supreme Court came down heavily on one side, essentially telling pro-life citizens they could never politically win because the Constitution wouldn’t allow it. They naturally felt disenfranchised. If in 1973 the court had held that fetal life deserved all the protections of the 14th Amendment, I imagine pro-choice citizens would have felt disenfranchised as well.
This is the problem of seeking monumental social change by convincing a Supreme Court majority rather than working toward a social and political consensus. In the United States, lasting legitimacy is the product of democratic consent. Rule by court diktat is written in sand, even if the tide rises only once in a half-century.
It’s disappointing to watch elements of the left react to the democratization of the abortion issue by attacking democracy itself. The argument goes: The electoral college gives Republicans — who have lost the popular vote in five of the last six elections — an advantage in winning the presidency and appointing Supreme Court justices. And the gerrymandering of state legislative districts has resulted in a GOP stranglehold on many state legislatures. Thus, the institutions where the left loses are rigged and illegitimate. That sounds much like the attitude it has been criticizing and fighting on the Trump-right.
A universal principle of politics is that whinging is not an effective substitute for organization. Neither is vituperation. I accept that pro-choice advocates believe they are seeking the welfare of women. But when they accuse pro-life people of intentional cruelty, or seeking to turn back the clock on civil rights, or advocating “a crime against humanity” (as Rep. Alexandria Ocasio-Cortez (D-N.Y.) has charged), they poison our politics with venomous libel. Almost uniformly in my experience, pro-life advocates believe they are serving the most vulnerable members of the human family by expanding the circle of legal inclusion and protection.
I’m more comfortable with the gradualism recommended in Chief Justice John G. Roberts Jr.’s prickly concurrence to Dobbs. He criticized the stridency and “relentless freedom from doubt” in Justice Samuel A. Alito Jr.’s ruling opinion. Roberts’s temperamental conservatism might have reached a similar conclusion over the course of a few more cases and lowered the initial shock to the body politic.
For the foreseeable future, the abortion debate — with all its tragic complexities — has been returned to the realm of democracy. And there is little evidence our democracy is prepared for it.