If the US Supreme Court had not made its Roe v Wade decision, abortion would have remained a matter for the individual states to decide. Whether a national pro-life movement would have arisen is difficult to say, but pro-lifers would have had to wage their political battles in each of the fifty state legislatures. In any event, a pro-life movement did indeed gain momentum, and the court's 1973 decision effectively exacerbated the deepening divisions in society over the issue. Because of the nature of the political process and because legislatures are able to put together carefully balanced compromises that at least minimally take into account the concerns of all sides, there is a good chance that everyone will come to own that decision for themselves, even if they are not completely satisfied with it.
However, court decisions are more likely to create winners and losers, whether in criminal, civil, or constitutional cases. In particular, the language of rights, if too quickly imported into the political process, is more likely to end a conversation than to facilitate it. This is the central thesis of Mary Ann Glendon's 1991 book, Rights Talk: The Impoverishment of Political Discourse. If a person claims a right to such and such, he is generally not inviting potential disputants to sit down with him and weigh such a claim in the balance. No, he is likely to attach absolutist pretensions to such a claim, dismissing potential opposition as unworthy of consideration because it would violate his indefeasible rights. When a court is brought into the conversation, it can only rule for or against the claim, thereby creating winners and losers. That a claimed new right may conflict with an historic right already protected in a constitutional document, such as freedom of speech and religious freedom, may not be sufficiently considered, thereby producing more conflict rather than ameliorating it. Only the winners can realistically be expected to own a court decision.
Such was Roe v Wade and several similar decisions handed down by the Court during the 1960s and 70s. By cutting short the deliberative processes in the several states in 1973, the court effectively shut them down, forcing those unhappy with its neglect of the personhood of the unborn child to mount a campaign at the national level. Rather than seeking fifty modi vivendi that might admit of a measure of compromise, pro-lifers and pro-choicers began making absolute claims that could not be simultaneously accommodated: The right to life is absolute and cannot be mitigated for any reason. A woman's right to bodily autonomy is absolute and cannot admit of any limitation whatsoever.
This form of reasoning brought people into the streets with placards rather than to the negotiating table with a willingness to hear each other out. Each side claimed the legacy of the long struggle for civil rights for African Americans, claiming for themselves the mantle of righteousness. Had the Court not made this decision over such a contentious issue, the status of abortion in the United States would have remained a patchwork. Patchwork legal regimes may seem untidy to some, but they better reflect the differing mores of the people in each state in a large country with a federal division of powers. Legal uniformity is not always a good thing, especially if it is imposed artificially by an unelected tribunal.
In this case, the Supreme Court's action led to a half-century-long effort to steer the court itself in a different direction. The chosen means to do this was by electing a president who would nominate to the Court justices who would refrain from legislating from the bench. During this time, abortion became a partisan issue, which it had not been in the first decades after Roe. At one time there were pro-life Republicans and Democrats, as well as pro-choice Republicans and Democrats. Yet by the turn of the millennium, this was no longer the case. The Republicans had adopted a pro-life stance, while the Democrats became monolithically pro-choice, effectively compelling pro-life members to change their convictions or leave the party. And although there is a group called Democrats for Life ("Pro-Life for the Whole of Life"), they are definitely at the margins of the party, which has thoroughly taken on the ethos of expressive individualism in a most dogmatic way. Republicans similarly abandoned their pro-choice members and hardened their position on the issue.
This partisan polarization is not a good thing, in my view. As long as pro-lifers and pro-choicers were found in each party, the party machinery had to maintain enough room for members and supporters who differed on the issue. This prevented the parties from flirting with the margins of public opinion, enabling them to continue their historic status as brokers of different interests within the fold. Under that arrangement, each party had to moderate the extremes among its members. With internal diversity often greater than the differences between the two major parties, each party had to appeal to the broad spectrum of public opinion in and between elections. This system has now largely broken down, as the extremes have moved into leadership within the parties. Yet, paradoxically, Democrats and Republicans are united in their adherence to a form of liberal individualism that nevertheless manifests itself in different, largely dysfunctional, ways in each.
Among the issues that now divided Republicans and Democrats was the role of the courts in public life. Republicans recognized the dangers of unelected judges ruling, with a thin constitutional basis, on issues still being debated in the legislative bodies. Democrats were more likely to favour activist judges ruling according to a notion of a "living constitution" evolving to meet the needs of each successive generation. The competing philosophies of judicial restraint and judicial activism came to be identified, somewhat misleadingly, as conservative and liberal respectively.
However, for most of the past half century, conservatives were caught in a dilemma: however bad the Roe v Wade decision might have been, by then it had effectively become the law of the land and thus a precedent to be followed in subsequent court decisions, such as Planned Parenthood v Casey (1992). Within common law jurisdictions, conservatives generally defer to the principle of stare decisis, or standing on what has been decided. This made conservative justices on the Supreme Court, nominated by at least nominally pro-life Republican presidents, reluctant to tamper with Roe, much less to reverse it entirely. Some observers, among whom I would count myself, thus thought it more likely that, rather than reversing Roe outright, the Court would gradually allow its applicability to the state legislatures to be eroded. In the event, this is not what happened, much to my own surprise.
Next: Reflections on Dobbs, part 3: Planned Parenthood v Casey
Previous: Reflections on Dobbs, part 1: creating and overturning precedents
2 comments:
It seemed to me prior to the leak of the draft opinion for Dobbs that there were four possible outcomes to the case.
First, was to declare the state law in question to be unconstitutional and leave the Roe decision as it was. This is, of course, what the three liberal justices wanted.
Second, was to uphold the state law in question to be constitutional, but NOT overturn Roe. This would have allowed the 15 week restriction (a tighter restriction than previously allowed) to remain in place; but also affirm the federal, constitutional right to abortion within that limit. This appears to be the result that Justice Roberts wanted. I base this on his questions and comments during oral arguements and his written concurring decision.
Third, is the result we actually received. This is the overturning of Roe and placing the decisions back into the hands of the states. This is what the five more conservative justices wanted and achieved.
Fourth would have been even more restrictive. They could have found in the Constitutions guarantees to due process, equal treatment under the law, and rights to liberty that abortion is federally unconstitutional. This would have nationally made abortion illegal in all states. This is in fact what two lawyers argued for in oral arguements. However, it seems, none of the justices took this idea on.
Before the leak of the draft opinion I thought they would take would take option number two, the position of Justice Roberts. After the leak I realized the court would take position three, the result we received the other day.
Now we will have political and legal fights at mostly the state level.
John P. McNamara
John, I too thought the justices would take a more cautious approach: allow Roe to stand but effectively limit its application. Tomorrow I will post part 5 in which I look at some of the possible negative ramifications of Dobbs.
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