Strengthening Constitutional Self-Government

No Left Turns

The Dangers of Overturning Roe v. Wade

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 they’re 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 don’t really have to do anything about abortion. We’ve 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.

Discussions - 17 Comments

Pro-lifers will be partially satisfied by being able to restrict abortion in the third trimester. the public will come tosee that second trimester abortions are equally disturbing as the presence of sonograms becomes a staple.

Limit abortion to the scary 3 (rape, insest & LIFE of the mother) and nearly all abortions will end.

It’s a shame Wittes has to attempt to convince the Democrats that it will hurt the Republicans if we stop supporting Roe v. Wade. If we lived in an ideal world, the Democrats would realize that being pro-life IS being progressive and abortion is unconstitutional (except in cases of self-defense). But, alas, Wittes has to resort to proving it’ll hurt the other party. Hurting the Republicans is really all the Democrats have been about in recent years . . . *sigh*

John, I think you mistakenly assume that even in this emotional issue, a large part of the American people and even the pro-life movement is seemingly incapable of pursuing their moral principles governed by the dictates of prudence, as did Lincoln. While there are certainly extremists in the pro-life movement, as there as in the pro-choice movement, pro-lifers may indeed be satisfied with overturning Roe v. Wade, allowing state legislatures or Congress to end abortions (or even a percentage of them, even allowing for some exceptions such as rape, incest, health. This would promote a moral good as well as preserve self-government by consent. Even someone like me who opposes ALL abortions would prudently welcome disallowing the Court to have the final word and make up rights and allowing democratically-elected legislatures to pass even what I would consider imperfect anti-abortion laws. You are right in showing that the whole thing would open up some fissures, but out of a desire to be elected, not many politicians would come out against all abortions and would probably fall in line with the American people in restricting abortion but not in all cases.

Limit abortion to the scary 3 (rape, insest & LIFE of the mother) and nearly all abortions will end.

Just out of curiosity, how do anti-abortion advocates defend philosophically the view that there should be exceptions for rape or incest? Doesn’t that imply that one’s right to life depends on the identity of one’s father?

John, in response to your question, anti-abortion activists generally don’t defend that view. I think some politicans do, as a pragmatic matter because they would rather get a 90% victory than 0%, but I don’t know many activists who draw those distinctions.

I don’t support exceptions for rape and incest either. A woman certainly has the right to resist the sperm by defending herself or attempting to have it removed at the hospital. She can also certainly give up the baby for adoption if she chooses. But, where I come from, one evil (rape) does not validate another evil (taking a human life). But, I would agree that it is prudent to get the abortion restrictions with these exceptions than no restrictions at all.

Tony, I disagree with your apparent assumption that assault victims can somehow resist pregnancy. Your first statement relies on the pretty reckless assumption that victims do not already resist their assailants; your second is based on science of which I have no knowledge whatsoever. That being said, I agree that regardless of the way a child is conceived, it is certainly not the child’s fault that his or her genetic material came from a bastard. There is no other crime for which we would knowingly punish an innocent person in place of the guilty. We should not simply presume that it is okay to do so here.

John, I do not support any of the exceptions listed above. My point was simply that most abortions are done as birth-control. Returned to the states, most states, IMO, would go for this option.

If abortions were allowed only for these 3 reasons, millions of lives would be saved.

Any debate with pro-aborts always revolves around these three "scary" situations. Removed from the table, they are left with nothing.

(Think of Lincoln’s effort to save the Union at all costs)

I am absolutely shocked and appalled at Tony Williams’ answer.

I must say that I’m in agreement with Tony.
Leave it for the states to decide (as it was).

I do find it funny that a popular argument against Federal abortion restrictions is that they are unconstitutional (due to the lack of language in the Constitution allowing Congress to regulate abortions). Theoretically, I agree; but it is also unconstitutional (in my understanding) to declare abortion as a Federal right in the first place. So since, pragmatically, abortion is a Federal right it is Congress’s responsibility to regulate it.

Again, I say leave it for the states to decide. (And my voting practices would probably, like Tony’s, shock and appall some of you.)

JC - very well reasoned out. I have changed my views thanks to you! I support the moral principle against abortion, resist the attempt by the courts to define rights not in the Constitution, defend federalism and self-government based upon the consent of the governed, and prudential decision-making in the political arena. Lincoln was guided by the same moral principles against slavery, defense of the Union and self-government, and prudence in politics against the radical Garrisonians and the relativist Douglas’s out there.

Wow. In any blog I’ve been to that has abortion as a topic, the comments are always plentiful.

For 30+ years now this issue has always been about being either for or against it. Because one side bases its answer on religious/moral priciples and other on secular self determination, the two sides will never agree on a common ground unless they accept a solution while agreeing to disagree.

I always make the point that the argument should not begin when the woman becomes pregnent but before that, when two adults have the ability to be responsible and say "maybe we should protect ourselves, or maybe we should hold off on this". I know, it fly against the "we can do anything we want as long as nobody gets hurt" crowd. But I don’t accept that.

I’d like to frame the argument in terms of responsibility and not rights. We’ll find more common ground.

Tony Don’t hide behind the critique of "reason" which you use here purely as a "moral" argument. I don’t even care what your "reasonable" argument may be. I am referring to the absolutely ridiculous and UNREASONABLE argument that surely women can halt the pregnancy by simply "resisting" a rapist or asking a doctor to "remove" it at the hospital. Yeah, that’s a completely "reasonable" and "rationale" argument.

I agree with Benjamin Wittes 100%, which is why I think that a lot of republican politicians are simply scamming voters, i.e. picking up votes on an issue that 50 years from now will still be hot, albeit complicated by an even greater morass of legal reasoning. Also because abortion is legal NOW has less power and in fact simply acts to stir up the republican base. This was part of the reason I gave for why Kerry lost.

The position that abortion is permissible only in certain cases ("the scary three") is simply untenable. If, let’s say, an abortion on demand is murder, then how can any other motivation not be murder? The child is just as innocent in rape or incest as he is in the abortion on demand case. And the killing is still a premeditated one, albeit probably not with malicious intent (although I fail to see how anyone who is thinking clearly about the subject will come to the conclusion that killing an innocent person is not a malicious act). In the case of the life of the mother, I’m afraid that the moral status of abortion would not change. It’s not self-defense; the fetus isn’t actively trying to murder the mother. This is simply an example of the evil condition of the world. Medical interference is not always a good. The case for exceptions is a purely emotive one and therefore illegitimate.

Daniel, you hit the nail right on the head. There are no defensible reasons for abortion, especially when there are so many alternatives. The rape and incest arguments are built purely on emotion and as such are hard to argue against, but I personally cannot see any defense of them. If the woman is concerned with having a "constant reminder" of the event, then she can give the child up for adoption. If she has emotional problems from carrying the child, then provide counseling. But there’s no reason the child should have to pay for the sins of the father.

The "health" clause is much easier to argue. Abortion kills more women annually than childbirth. That’s just a cold hard fact. If it is proven that a woman cannot carry a child to term without dying, then why not perform a c-section instead? And the viability argument doesn’t fly anymore either. I recently finished reading an article about a girl who was born at 15 weeks and survived. Medical science has improved to the point that viability is simply no longer an issue.

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