Letting Go of Roe

The Atlantic Magazine, January / February 2005

Are we about to suffer through another horrible Supreme Court nomination dominated by abortion politics?

Bet on it. With Chief Justice William Rehnquist seriously ill, the prospect of a Supreme Court vacancy early in George Bush’s second term looms over American politics. The script for this—and every—Republican high-court nomination was written long ago. You already know how it goes: Both his own convictions and the need to keep his political base happy require a conservative president to nominate someone expected to vote to overturn Roe v. Wade, the 1973 case that established the constitutional right of women to terminate their pregnancies. He has only two realistic choices. He can name someone openly hostile to Roe—and thereby trigger a major confrontation with liberal interest groups and Senate Democrats. Or he can name someone with no record on abortion rights but whose jurisprudential approach suggests a predictable skepticism toward them—in which case liberals will insist on trying to divine the nominee’s views on the question, which he or she in turn will endeavor to conceal. Unless the president nominates someone the Democrats deem it not in their interests to oppose, the nomination process will become an ugly spectacle in which a single narrow issue pushes to the sidelines discussion of the broad array of other important legal questions the Supreme Court handles. And that process will cast abortion-rights supporters as intolerant of those who disagree with them—or even those they fear may disagree with them.

What’s the alternative?

Liberal abortion-rights supporters could chill out.

Do you mean surrender and let Roe die?

That’s exactly what I mean. It wouldn’t necessarily come to that, of course. Republicans have put seven of the nine current justices on the Supreme Court—and they still have only one more anti-abortion vote than they had in 1973, when the decision came down 7 to 2. Where reproductive rights are concerned, the bark of a conservative nominee is frequently worse than his bite—as three justices nominated by Ronald Reagan or George H.W. Bush proved in 1992, when, in Planned Parenthood v. Casey, they voted that “the essential holding of Roe v. Wade should be retained and once again reaffirmed.”

Still, if Roe ever does die, I won’t attend its funeral. Nor would I lift a finger to prevent a conservative president from nominating justices who might bury it once and for all.

Are you a pro-lifer?

Not at all. I generally favor permissive abortion laws. And despite my lack of enthusiasm for Roe, I wouldn’t favor overturning the decision as a jurisprudential matter. A generation of women has grown up thinking of reproductive freedom as a constitutional right, and the Court should not casually take away rights that it has determined the Constitution guarantees. Stability in law—particularly constitutional law—is critically important; the Supreme Court would do well to remember that. Still, the liberal commitment to Roe has been deeply unhealthy—for American democracy, for liberalism, and even for the cause of abortion rights itself. All would benefit if abortion-rights proponents were forced to make their arguments in the policy arena (rather than during Supreme Court nomination hearings), and if pro-lifers were actually accountable to the electorate for their deeply unpopular policy prescriptions.

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