Consider the examples of North Dakota and Arkansas.
If you think the problem with Roe v. Wade was that the Supreme Court short-circuited the evolving democratic process in the states, look at what the democratic process has wrought.
Arkansas last month enacted a law that bans abortion after 12 weeks. North Dakota went even further, banning abortion after six weeks.
These blatantly unconstitutional statutes aren’t the product of a 40-year-old Supreme Court ruling. They are the result of a sincere and intense belief — one I do not share — that abortion is the taking of a human life. They do not demonstrate the folly of the justices’ intervention in Roe. They demonstrate its necessity.
The argument over Roe and the alleged backlash it engendered is important because of its obvious echoes in the same-sex marriage cases. Indeed, Charles Cooper, the lawyer defending California’s ban on gay marriage, made the democratic process pitch. “The question before this court,” he said, “is whether the Constitution puts a stop to that ongoing democratic debate and answers this question for all 50 states.”
There are two versions of this argument. The first, Democratic Process Lite, is that the court shouldn’t act now but rather give the country more time to adjust to the notion of marriage equality before stepping in. The second, Democratic Process Above All, would have the judicial branch eternally defer to supposed legislative wisdom.
The first argument makes some sense to me. It tracks the court’s program of deliberate procrastination on the analogous matter of laws barring interracial marriage. In the emotional aftermath of the school desegregation rulings, the court managed to duck the issue of interracial marriage for a dozen years, during which the number of states with anti-miscegenation laws fell from 26 to 17.
Is it fair to ask same-sex couples to wait to have the same constitutional right to marriage as straight couples? No, and I’d prefer to see the court rule for marriage equality tomorrow.
But given the velocity of change, in both public opinion and the legislative landscape, I can see the merits of allowing same-sex marriage to win approval in more states before the court intervenes. We’re not talking about a dozen years this time.
More to the point, whether the country is ready for a constitutional right to same-sex marriage or not, the justices don’t seem prepared to take that plunge. “If the issue is . . . letting the society have more time to figure out its direction, why is taking a case now the answer?” Justice Sonia Sotomayor asked Cooper. “We let issues perk.”
The percolation theory is, I think, also what underlies Justice Ruth Bader Ginsburg’s much-remarked-on critique of Roe as counterproductively sweeping and precipitous. “It’s not that the judgment was wrong, but it moved too far, too fast,” the justice said at Columbia Law School last year.
But there is a difference between “too far, too fast” and “never ever,” which is why the Democratic Process Above All argument is wrong. The point of constitutional protections is that some rights are too fundamental to leave to a majority’s whims and prejudices.
The right of a woman to decide whether to bear a child is one. The right of two people to marry is another. There are people who will never agree and states in which they constitute a majority. The Constitution shields individuals from these majorities. If backlash to the rulings of “unelected judges” ensues, so be it.
But there are reasons to doubt the backlash narrative on both abortion and same-sex marriage. Linda Greenhouse and Reva Siegel of Yale Law School have argued convincingly that the politicization of the antiabortion movement predated Roe and that the movement to relax abortion laws had stalled in the years before the ruling.
At the same time, they write, the court ruled in sync with public opinion, not in contravention of it. A Gallup poll then found 64 percent agreeing that “the decision to have an abortion should be made solely by a woman and her physician.”
Harvard Law School’s Michael Klarman, who believes that Roe “catalyzed a powerful right-to-life movement,” nonetheless predicts that a broad ruling on same-sex marriage would be less incendiary, in part “because the effect . . . on others’ lives is so indirect.” That sounds right: Those who view abortion as murder understandably feel more intensely than those who express moral distaste for same-sex marriage.
In short, the justices shouldn’t worry about the threat of a backlash. They should focus on their constitutional role as a backstop.