The inherent weaknesses of Roe’s approach have long been recognized even by the strongest defenders of abortion rights. In 1992, for example, Ruth Bader Ginsburg criticized Roe as a “breathtaking” precedent during a speech at New York University.
Her lecture addressed “measured third-branch decision making,” and she spoke words that have proved remarkably prescient. “Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable,” she said. And what was a prime example of a too-swiftly shaped doctrinal limb? Roe v. Wade. “A less encompassing Roe, one that merely struck down the extreme Texas law and went no further on that day … might have served to reduce rather than to fuel controversy.” (Source)
I would like to live in a society in which abortion was considered always a last resort and a society that did everything it could to make the need to resort to such an extreme step as infrequent as possible, and I would like to live in a society that could grapple its psychological and moral complexities in a sane, humane way. But we do not live in such a society; we live in one in which nothing matters except which side of the culture war claims your allegiance.
As Charlie Sykes writes--
If Roe is overturned, cry havoc, and let loose the dogs of unrestrained culture warfare.
...
And the schism between red and blue America will become wider and starker. While red states impose criminal penalties, blue states will expand taxpayer funding. American women will be living in two very different countries.
There will be protests, boycotts, and calls for sweeping federal legislation. Unified GOP control of Congress and the presidency will inevitably lead to calls to federalize Mississippi-like restrictions. In this environment, the extremes will define themselves by their hostility to compromises of any sort.
(I imagine it playing out like this: J.D. Vance comes out for a ban after 6 weeks; Josh Mandel calls for a ban after 2 weeks; MTG declares that all true conservatives support a total ban; and Madison Cawthorn insists that the true pro-life position demands the death penalty for doctors who perform the procedure.)
Every legislative and governor’s race now becomes a referendum on abortion.
Every congressional and senate race will be a referendum on abortion.
The 2024 presidential race will be a referendum on abortion.
In a sane world, this debate could actually be healthier than what we have now. But does anyone think that we live in a world that particularly values sanity?
Instead of lowering the temperature, overturning Roe guarantees that abortion will continue to be the bloody shirt of our politics for decades.
Just what the doctor ordered for an ailing democracy in the ICU.
The mistake made in '73 created the instability that RBG noted in '92, and it was really the beginning of the culture wars--and of the de-legitimation of the courts because of its overreach. I agree with Douthat at least in this--
a key implication of Alito’s draft — and of arguments marshaled for generations by Roe’s critics — is that treating the judiciary as the main arbiter of our gravest moral debates was always a mistake, one that could lead only to exactly the kind of delegitimization that we see before us now.
Regardless of whether the draft becomes the final decision, then, its leak has already vindicated one of its key premises: that trying to remove an issue like abortion from normal democratic politics was always likely to end very badly for the court.
Now that fifty years have passed, you can't just go back to 1973 to rectify the mistake made then by the making same mistake now. Roberts seems to get this in a Burkean conservative way that his naive, non-contextual "originalist" colleagues do not. For these absolutists, history be damned--we're right either sub specie aeternitatis, or because they read a 235-year-old political document the way fundamentalist read the Bible. Absolutists have a role to play to stimulate debate, but sensible people should never allow them to set policy.
And so regardless which side of the culture war you lean toward, you have to understand that something like abortion should not be fodder in such a such conflict. It's too complex, too much is at stake, and it's something that should have been dealt with gradually and in ways that respected traditional mores and norms without being completely constricted by them. But it wasn't. So now we have a mess that is likely to be thrown back to the states in the midst of the culture war that Roe initiated. And so abortion just becomes another issue to be resolved by our politics of dysfunction, which makes sensible, serious legislation less likely to be passed.
But I have little patience for the all the cable news pro-choice ideologues who refuse to see this in any terms except those approved by NARAL. Yes, this is primarily a women's issue, but to what extent NARAL represents the views of most women is likely to be similar to the extent to which the NRA represents the views on gun control of most gun owners.
Here's a compromise idea. Would the folks at NARAL support it?
- Every state that passes new post-Roe abortion legislation should hold a referendum to approve it by winning a 60% supermajority.
- Only women will be allowed to vote in in this referendum after reading Caitlin Flanagan's "The Dishonesty of the Abortion Debate" in The Atlantic.
I know that will never happen, but I think that a vote that requires a supermajority of women on an issue as consequential for women as this one, will be the best way to prevent the absolutists on the Left or the Right from setting the policy.
5/8/22 Update: Douthat supports my assertion that Roe initiated the culture wars:
A nationalized abortion debate split America along two especially dangerous lines of fracture, class and religion. Though liberals often insist that they are championing abortion rights on behalf of the poor and marginalized, the reality is that poorer and less-educated Americans are more likely to be pro-life, while the rich and well-educated are more likely to be pro-choice. Likewise, though pro-lifers stress the secular arguments against abortion, the reality is that Christian beliefs are one the best predictors of anti-abortion sentiment.
So the sorting that defines our politics today — a right that’s working-class, rural and religious, a liberalism of the city and the secular and the managerial class — was accelerated by the divisions over Roe.
And the way Roe was decided made this polarization worse. From the perspective of geography and class, a group of robed lawyers in Washington, D.C., demanding that the country simply accept their settlement on one of the gravest moral questions imaginable is the perfect primer for a populist revolt. What has happened in similar ways with other issues — immigration, most notably — happened with abortion first: The elite settlement failed to settle the issue, and the backlash encompassed not just the issue itself but elite legitimacy writ large.
From the perspective of religion, meanwhile, by constitutionalizing the issue Roe didn’t just hand a normal political defeat to the pro-life side; it seemed to read their core convictions out of the American constitutional order entirely, seeding a religious alienation that continues to bear bitter fruit today. And the timing was particularly unfortunate: When Roe was handed down, both Catholicism and evangelicalism had just passed through periods of reform and modernization that promised a reconciliation between Christian faith and liberal modernity. Then immediately, liberal modernity changed its demands and made them all-or-nothing, making the moral price of admission more than many Christians could reasonably pay.