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.

2 thoughts on “Good Intent, Bad Law: Roe v. Wade’s 50th Anniversary

  1. I think you hit the nail on the head with this post. I have also done a lot of reading on this subject post-Dobbs, and the common theme I’ve noticed is that, as late as the 2000’s, most prominent pro-choice activists recognized that Roe v. Wade was a faulty ruling and a blatant example of judicial overreach, which necessitates the need for a federal law rather than relying on a deeply-flawed precedent to keep abortion legal in every state. It seems like it wasn’t until the 2010’s that Roe v. Wade began to be viewed as this sacred cow that needed to be protected at all costs, and I have to wonder if a large part of the reason for that is the echo chamber-y nature of social media, which has definitely poisoned our country’s ability to have rational debates on subjects like this.

    The rise of the religious right is definitely going to go down in history as the darkest consequence of Roe v. Wade’s legacy, and that above all else makes me wish that SCOTUS had just struck down the Texas law instead of absurdly enshrining abortion as a constitutional right; it’s officially reached the point where some Republican Congresspeople are OPENLY BEMOANING the separation of church and state, which is something that never, ever should have been able to manifest in the U.S. With that being said, there *are* reasons to be hopeful that the abortion debate can take a more productive turn in the future, from the failed referendums for constitutionally banning abortion in deep-red Kansas and Kentucky, to the likelihood that the Republican Party will need to adopt a more moderate stance on abortion after it (among other factors) cost them what should have been an easy red wave this past November. I fear it’ll be many, many years before a compromise will be reached at the federal level, since a lot of the discussion right now has more to do with partisan grandstanding (e.g. “X wants to allow abortion up until the moment of birth”; “Y wants to ban abortion without exceptions for rape or incest”) and less to do with the sobering realities of abortion in the U.S. (e.g. states with severe abortion restrictions have seen an uptick in maternal/infant mortality; over 99% of abortions happen in the first two trimesters + the vast majority of the <1% in the third trimester are performed to protect the life of the mother).

    More than anything else, we need to set this country on the path to ensuring that a situation such as what happened to that 10-year-old girl from Ohio never, ever happens again. I’ve seen the argument that a 10-year-old would’ve been allowed to get an abortion in Ohio under the rationale that it would fall under the exception for the health of the mother, but realistically, how many abortion providers are going to take that chance? It’s similar to the issue that I have with the Florida Parental Rights in Education Act; there’s enough vagueness in laws like these for an onlooker to misinterpret what it actually means and kick off an extremely costly court battle against the other party, no matter how much in the right they are. If the most productive way forward is to move one step at a time, I would at least like to see a bipartisan consensus on codifying caveats like these into federal law before the end of this decade (maybe it’s wishful thinking, but if it could happen for gay marriage/religious liberty not even a couple of months ago, I’d like to be cautiously optimistic that we can at least set a national perimeter for abortion access for minors under all 50 states’ age of consent).

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