Monday, January 10, 2005

The Supremes and the future of abortion

Benjamin Wittes has a provocative, and I think compelling, piece in the Jan/Feb issue of the Atlantic titled "Letting Go of Roe" (subscription required, but do it. It's worth it). He argues that liberal abortion rights supporters should sideline Roe v. Wade as an issue during future Supreme Court confirmation hearings, and let the ruling die a natural death during any subsequent court challenges.

(Wittes, an editorial writer for the Washington Post, is best known for his 2002 book Starr: A Reassessment. I've not read it, and I have absolutely no use for Starr, who can most charitably be described as a pompous, self-serving ass. Even so, I've found Wittes's shorter pieces on Starr to reflect an honest, and at least partially successful effort on his part to gain a more nuanced and instructive understanding of Starr's thinking and actions than that offered by either the left or the right while caught up in the throes of The Passion of the Clinton.)

The crux of Wittes's argument in "Letting go..." is that the path to success in legitimizing abortion in America is through legislative rather than judicial protection:

"...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....By removing the issues from the policy arena, the Supreme Court has prevented abortion-rights supporters from winning a debate in which public opinion favors them."

Wittes also acknowledges the-point-that-must-not-be-spoken, namely, that the decision on which that judicial protection rests lacks the Constitutional clarity necessary to be truly authoritative in the consciousness of many Americans:

"Since its inception Roe has had a deep legitimacy problem, stemming from its weakness as a legal opinion....In the years since the decision an enormous body of academic literature has ried to put the right to abortion on firmer legal ground. But thousands of pages of scholarship notwithstanding, the right to abortion remains constitutionally shaky..."

I think Wittes overplays his argument a bit in this respect. Entirely by chance, I happened upon a radio broadcast of a 1995 interview with Harry Blackmun centered on Roe. He noted, as does Wittes himself, that the increasingly conservative Supremes have taken a flyer on overturning the decision at several turns. And Blackmun, who was by no means a ragin' librul at the time he authored the majority opinion, indicated that in retrospect he thought it was still sound judicial reasoning. Regardless, Wittes gets the consequences right:

"...the court has not backed down on abortion. Thus the pro-life sense of disenfranchisement has been irremediable--making it all the more potent....Meanwhile, Roe gives pro-life politicians a free pass.

In short, Roe puts liberals in the position of defending a lousy opinion that disenfranchised millions of conservatives on an issue about which they care deeply while freeing those conservatives from any obligation to articulate a responsible policy that might command majority support."

And his thoughts on the consequences of giving the issue to Congress are on target:

"...thousands of conservative politicians will be faced with a dreadful choice: backtrack from the anti-abortion ground they have staked out and risk infuriating their pro-life base; or deliver on their promise to eliminate the right to abortion, and risk the wrath of a moderate, pro-choice majority. In the short term some states might pass highly restrictive abortion laws, or even outright bans--but the backlash could be devastating for conservatism. Liberals should be salivating at their electoral prospects in a post-Roe world."

Just so. As I noted--somewhat less eloquently that Wittes--a few months back, the Dems need to take this fight to the floor this term, and make the wingers put up or shut up. Politically, they'll no longer be able to demonize the left and progressive candidates as "baby killers" during every campaign season. Practically, the results are ultimately likely to protect a woman's right to choose more effectively that Roe ever will.


Anonymous Anonymous said...

Verrrrrry interesting. The trick here is figuring out to whom the admonition, "be careful what you wish for" should apply.

5:02 PM  

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