Good Intent, Bad Law: Roe v. Wade’s 50th Anniversary

Today is the 50th anniversary of Roe v. Wade, and many is the lamentation that it didn’t live to see its 50th year. I remain divided in mind about it. As a firm pro-choice advocate I was dismayed by Roe’s overturning last summer, but from a judicial point of view I can’t deny it was a bad ruling. I had always been aware of pro-choice feminists who believed that Roe had little to no legal support (not least the late Ruth Ginsburg), but not until last year did I bother to give it much thought. Roe, I’d thought, was here to stay (my “prediction” in 2018 that it would be overturned in 2021 by Samuel Alito was just a dark fantasy I pulled out of my ass), and I was just thankful that abortion rights had the highest level of protection.

Why was Roe a bad ruling? Because it (a) fixated on a peripheral issue (privacy), and then (b) used that faulty element to make a judicially activist fiat, which ended up (c) putting the brakes on a trajectory in American consensus that was actually favoring abortion. In this I follow the late Ruth Ginsburg.

Pro-choice advocate Tom Flynn has also criticized Roe as an overreaching fiat that settled the abortion in an unstable and undesirable way:

“By enforcing a preemptive victory for those in favor of abortion rights, it brought the grass-roots debate about the subject to a premature end. The important questions, such as ‘When does a fetus become a human person?’ were never really thrashed out. So we arrive at today’s situation, where abortion rights exist only by court order because advocates never got the chance to build a broad-based constituency for them.”

Prior to Roe, the trajectory toward abortion acceptance was clear. Sixteen states had liberalized their abortion statutes. The American Medical Association had reversed its policies, shedding its strict anti-abortion skin and adopting strong pro-choice guidelines. If not for Roe, many states would have almost unquestionably established liberal abortion policies. Roe‘s overreach ignited religious-right activism, and when right-wingers are out in droves to “defend the most innocent lives from murder”, it’s hard to claim the moral high ground, especially when the pro-choice case rests lamely on one’s “right to privacy” (the basis of Roe) and one’s “right to choose” (to choose murder? asks the anti-abortionist). Without Roe, progressives could have finished their task in educating people as to why abortion is not just “my business” and “my choice”, but actually morally superior in a world of unwanted pregnancies, poverty, rape, and unnecessary suffering.

Fifty years after Roe, and one year after Dobbs, I’m hoping that the latter will enable the fulfillment of the former’s ambitions in the legislative arena where it belongs. And it’s not an unreasonable expectation. Polling shows that there is little support in America for an abortion ban, especially if it doesn’t make exceptions for rape and incest. 80% of Americans want to keep abortion legal, either entirely (32%) or with some restrictions (48%), while only 18% want it banned entirely.

In responding to the fury over Dobbs, Andrew Sullivan had this to say:

“Dobbs will send the abortion issue back from a single court to democratic debate and discussion – where it is in every other western country. Even the most progressive countries regulate abortion through the democratic process. In Germany, it’s illegal after 12 weeks of pregnancy — more restrictive than the case of Dobbs that bars abortion after 15 weeks. European countries where the legal cutoff is even more restrictive: Austria, Spain, Greece, Italy, France, Belgium and Switzerland. Abortion enshrined as a constitutional right? Not even in super-progressive Canada. The United States, in other words, has been an outlier in the past and, with Roe reversed, it will return to a democratic politics of abortion, in line with most of the Western world. Abortion, if we wanted, could actually be an issue that restores health to a polarized polity by forcing us to come to various forms of compromise over an issue we’ve debated entirely in the abstract until now. We can no longer punt it.

“States can pursue different legal regimes, from the very permissive to the very restrictive, and the results can be weighed up. Remember federalism? This is a near-perfect reflection of its essential role in keeping this country in one piece. And, in my view, all of this actually calls the cheap, moralizing bluff of the religious right. Now they actually have to enforce and defend draconian bans — and see popular revulsion grow, unless they too can come up with a compromise. Leftists, if they could only snap out of their disdain for democracy, can make a powerful case for moderation on this issue against right-extremism. To do that, of course, they will have to back some restrictions on abortion in some states — which some seem very reluctant to do — and even allow some diversity of opinion within their own ranks.

“So let’s stop the hyperventilation and get back to democracy. Persuade people, if you can. Get them out to vote. Stop demonizing those you disagree with and compromise with them in office, however difficult that may be. What Roe did was kickstart the extreme cultural polarization that has defined and blighted the last few decades of American politics. Maybe the end of Roe can mark the beginning of a return to living together, and negotiating a way to make that bearable.”

With Sullivan I agree, as I do with Edward Lazarus, the law clerk for Justice Harry Blackmun (who wrote the opinion for Roe). Lazarus said: “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose and as someone who loved Roe‘s author like a grandfather.”

This may not be a triumphal way of honoring Roe’s 50th anniversary, nor the most respectful one, but I do honor what came of Roe, even if it was through a judicial error. And I stand with Ruth Ginsburg, Tom Flynn, Andrew Sullivan, and Edward Lazarus (and plenty of others) in defending abortion rights and wanting those rights codified in law — not by a judicial fiat which begs to be overturned by those who soundly interpret the Constitution, but by a democratic process that binds the judiciary to respect it.