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| A Progressive Argument for Overturning Roe by Larry DeWitt Here is a truly radical thought, to chill the false bravado of those progressives who fancy themselves in rebellion against the prevailing political hegemonies. Maybe it is time to conclude that Roe v. Wade, and a woman's "right to choose," has become a massive political liability for progressives. And maybe it is time we welcomed the right-wing effort to get the Supreme Court to overturn Roe. Now that I have your attention, let's think about this, step-by-step. In the first place, notice the unpleasantness of our present political positioning. Liberals have been put into a corner in which our most fundamental litmus-test for a proper liberal politics is that we defend the "right" of a woman to kill a potential human being. Now there are reasons of course, and some of them good ones, why we have been driven into this corner. But look at it. That is the corner we are in. We are not defining the liberal position in American politics by our concern with inequalities of wealth, or the fight for equal opportunity, or the defense of social welfare programs, or the need to protect the environment, or the need to ensure the separation of church and state. We have no single-issue litmus-tests for liberalism, except for supporting abortion. This ought to give us some pause. The second point we ought to at least take note of is the fact that Roe was almost certainly wrongly decided in the first place. The idea that the Constitution's (only implicit) right to privacy somehow includes the right to an abortion, was a wild-ass stretch in the first place. There really is no provision of the Constitution that contains any such right. It is in fact true--as the conservatives have complained all along--that Roe was an instance of liberal judicial activism on the part of the Court. Liberals do not really mind this, since the result was the result they wanted. But if we are honest about it, the idea that abortion is a Constitutional right is very dubious. Now, let's think about what has happened in the wake of Roe. This decision has become the rallying point for every brand of conservative in the country--the ultimate "hot button" issue for the right. Indeed, what has happened in the thirty-plus years since Roe is that the conservative movement has been able to use Roe as a magnet of enormous power to build and consolidate the conservative movement. Even core liberal constituencies have been cleaved by this decision. Catholic voters--who are among the most reliably liberal of the religious groups because of the Catholic Church's teachings on social justice--have been split by the abortion issue and many of them now vote Republican. At the national level, it would not be an exaggeration to say that Roe has been the clue that has held the new conservative coalition together. As a national movement, conservativism is to a large degree a creature of the Roe decision. This means that liberals support Roe at tremendous cost to the other components of our political agenda. The Republicans have used opposition to abortion as the single most potent issue they have to ride into power and to stay there. So not only do we get a pro-life position as the one advocated by the party in control of the Congress and the White House, but we also get all the other political baggage that the conservatives tow behind them as they make their ravaging way across the American landscape. National political power for Republicans is fueled by a passionate opposition to abortion rights, which moves millions of Americans to a level of political activism that they would not otherwise engage. And because Roe never actually gets overturned, the issue is a perpetual one--maintaining a high-level of political activism on the part of people who are supporting the Republican party. So the Republicans have the best of all possible political worlds and the Democrats have the worst. Republicans can rail against Roe without actually restricting any woman's rights--it might trigger a backlash against their party if Roe were actually overturned. Hence, the Republicans can perpetually depict themselves as engaged in a crusade that never ends, requiring never-ending political support for their party. While Democrats support Roe rhetorically, thus earning the animus of the highly-motivated pro-life voters, while not actually changing anything about a woman's rights. In other words, the Republicans have a political position that is all benefits and no costs, and the Democrats have a position that is all costs and no benefits. That's where we are. So let's imagine for a moment what might happen if we let the Supreme Court overturn Roe. This would mean that there is no Constitutional right to an abortion. Which would mean that the issue would become one within the scope of legislatures and not the courts. So the Congress and/or the individual state legislatures would be free to legislate restrictions or non-restrictions on abortion. Most likely, the States would seize the initiative here and the Congress would defer to them. This is likely both for reasons of federalism, and because in the Congress there are a higher proportion of pro-choice votes than will be the case in some states, and so even conservatives in Congress will see wisdom in deferring the policymaking to the States, even if some states enact more liberal laws as a result. Some States might prohibit abortion outright, but some might allow it under even more generous conditions than exist under the regime flowing from Roe. So, if Roe is repealed, we might end up with a fractured regime in which some states are liberal and some conservative on abortion rights. But there is at least some chance that even conservative states may shift in a more liberal direction if Roe were not there as the bulwark of abortion rights. That is, it is easy for politicians to placate their pro-life constituencies because there is no real political cost for doing so, since Roe prevents their professed policies from ever actually being put into effect. It is a cost-less political position to oppose abortion while under the regime of Roe. If there is no right to an abortion under Roe, at least some conservatives may be given pause by this and may tack left a little in response. Feminists of course will react in indignant outrage over the thought of abortion no longer being a Constitutional right. They will raise the specter of back-alley coat-hanger abortions if even one state outlaws abortion. But even if a handful of states do so, we are unlikely to return to the bad old days of back-alley abortions. For one thing, abortions are likely to be still widely available in many states; and for another, the culture, the medical technology, the attitudes and values of the society, are very different now than they were pre-Roe. Even if Roe is repealed, this is not equivalent to a return to pre-1973 America. The shift in the field of battle from the courts to the legislatures actually holds great promise for the pro-choice position. An important point to note is that the pro-choice position is the majority political position in this nation. Approximately 54% of all voters nationwide describe themselves as pro-choice while only 38% describe themselves as pro-life. (1) In a democratic contest over this public policy, the pro-choice position will win, on the whole. Under the current political situation, by contrast, the public policy on abortion in this country is effectively decided by literally one or two people on the Supreme Court. So it is not only possible but likely that the will of the majority of Americans could be thwarted by the will of one or two people. To put it plainly: abortion rights in America are presently the province of a tiny dictatorship of elite opinion on a single court. That ought to scare the bejesus out of pro-choice advocates. But they are so obsessively focused on defending their ill-gotten gain (a victory in a court, granted by one or two judges) to notice that what one or two judges can giveth they can just as easily taketh away. If you are a pro-choice advocate, you will almost certainly be better off in the legislatures of the land than in the increasingly-conservative courts. After all, thanks in large part to Roe, the conservatives have been gaining political power for thirty years now, and have been steadily larding the courts with conservatives throughout that whole time. So face it progressives: There are no liberal courts in your foreseeable future. This ought to alert you to the danger of placing your bets on the courts as the protectors of abortion policy. So, if the Supreme Court repeals Roe and decides there is no Constitutional right to an abortion, the following things will likely happen:
Not all of these consequences would be bad for progressives. Maybe it is time to think more strategically and less ideologically about the abortion issue. So, here is what I suggest:
Seems like a better political strategy than the one we are following now. Perhaps as progressives we need to give this issue some more thought. 1. See the vast amount of polling data on this subject available at: http://www.pollingreport.com/abortion.htm | ||
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