In the latest issue of The Atlantic (sorry, for subscribers only) Benjamin Wittes argues that the time has come for the Democratic Party to stop defending Roe v. Wade. Part of his argument is that the criticisms conservatives have made against it are not totally off the mark.
Since its inception Roe has had a deep legitimacy problem, stemming from its weakness as a legal opinion. Conservatives who fulminate that the Court made up the right to abortion, which appears explicitly nowhere in the Constitution, are being simplistic—-but theyre not entirely wrong. In the years since the decision an enormous body of academic literature has tried to put the right to an abortion on firmer legal ground. But thousands of pages of scholarship notwithstanding, the right to abortion remains constitutionally shaky; abortion policy is a question that the Constitution—-even broadly construed—-cannot convincingly be read to resolve.
Of course, this comes as no news to any conservative. But his more interesting argument concerns how a reversal of Roe v. Wade would place the Republicans in a deep dilemma.
Roe gives pro-life politicians a free pass. A large majority of voters reject the hard-line anti-abortion stance: in Gallup polling since 1975, for example, about 80 percent of respondents have consistently favored either legal abortion in all circumstances (21 to 34 percent) or legal abortion under some circumstances (48 to 61 percent). Although a plurality of Americans appear to favor abortion rights substantially more limited than what Roe guarantees, significantly more voters describe themselves as "pro-choice" than "pro-life." Yet because the Court has removed the abortion question from the legislative realm, conservative politicians are free to cater to pro-lifers by proposing policies that, if ever actually implemented, would render those politicians quite unpopular.
He makes a valid point; as long as Roe stands Republicans can fulminate against it, secure in the knowledge that they dont really have to do anything about abortion. Weve spent a good bit of time talking about the divide in the Democratic Party between moderates and ultra-liberals, but a reversal of Roe would on doubt expose a fault line within the GOP that is just as wide--the one separating die-hard pro-lifers from those of us who, while favoring certain restrictions on abortion, see considerable moral and practical problems with an outright ban.