Letting Go of Roe

Abortion perhaps more than any other domestic issue divides liberals from conservatives. It may surprise some that old-style liberals of the 1960s might not be all that happy about the 1973 Supreme Court decision, Roe v. Wade, that made abortion a so-called constitutional right.

In the Jan./Feb. Atlantic Monthly magazine, Washington Post editorial writer Benjamin Wittes comments: "By removing the issue [of legal abortion] from the policy arena, the Supreme Court has prevented abortion-rights supporters from winning a debate in which public opinion favors them."

In "Letting Go of Roe," the pro-choice Wittes shows why today's liberals ought to accept that Roe must go. The decision which rendered state anti-abortion laws unconstitutional has actually, says Wittes, been bad for America, bad for its politics ... and bad for the pro-choice cause!

Wittes says, first of all, that overturning Roe would put abortion back in the political-legislative arena where it really belongs. Ceasing to have abortion rights protected by judicial decisionmaking — by what oldstyleliberal would call the politics of edict — would have several benefits:

• The shaky constitutional grounds on which Roe was originally decided would no longer vex our politics. Wittes says it's not true that "the right to abortion—like minority civil and voting rights — [is] unambiguously protected by the Constitution." To the contrary, he says, "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."


• The fact that a solid majority of Americans historically want abortions in some (but not all) circumstances to stay legal means pro-lifers couldn't easily pass legislation making all abortions illegal.


• Pro-life politicians would no longer enjoy the "free pass" Roe now gives them. Today, they can fulminate all they want to against abortion, and it just helps them solidify their conservative political base. With Roe gone, they'd have to put their political lives on the line with not just conservatives but the large bloc of middle-of-the-road voters that favor moderately pro-choice positions. They'd have to put up or shut up by trying to implement the no-abortions-at-all policies they claim to covet. That, says Wittes, "would render those politicians quite unpopular."

So liberals would get the abortion monkey off their backs! Meanwhile, most states would pass laws legalizing abortion in certain situations and/or with certain restrictions. And those laws would be in the long run more reliable than the "guarantees" of Roe, because, says Wittes:

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.

The downside? Surely it would be unlikely that all abortions that happen legally today would remain legal: some abortions now legal under Roe would almost certainly become illegal in every state. And some states would undoubtedly outlaw abortion entirely, necessitating travel to another state. We'd end up with an abortion checkerboard, just as we already have a capital-punishment checkerboard.

Messy? Yes, indeed. Elegant? Not at all. Democratic? Emphatically. By abandoning the politics of one-size-fits-all edict for the politics of democratic debate, liberals would simply have to accept that a 50-state democracy such as ours is a pastiche, a dynamic crazy-quilt of law whose patterns, furthermore, shift over time.