words of truth
2006-01-29 06:43:58 UTC
The Crumbling Castle
On the thirty-third anniversary of Roe v. Wade, the decision seems
simultaneously to have become more sacrosanct than ever, and more
imperiled than ever. It is supposedly well-settled as a matter of law.
Even some former opponents of the decision believe that it has survived
for so long that it should not be overruled. The op-ed pages are full
of liberals who allow that Roe was never a well-reasoned inference from
the Constitution, but say it's too late to let it go.
And polls find the decision to be popular, so it seems to be protected
by both legal and political fortifications. Yet we are constantly
warned that the president is chipping, chipping away at Roe, and that
each of his Supreme Court appointments could be the last vote to
There are ways of resolving the apparent contradiction. Maybe the
explanation is that conservative Republicans are radicals, attempting
to unsettle what's settled and zealous enough that they might just
succeed. Or it could be that pro-abortion groups are crying wolf about
the danger to Roe: Surely each nominee to the Supreme Court can't be
the deciding vote against it. (Given the mercy an end to Roe would show
to the unborn, perhaps "crying lamb" would be a more appropriate
But we think that the best explanation is that Roe's apparent strength
is largely illusory. Take those polls. Do they really mean that 66
percent of the public (to use the figure from a December NBC/Wall
Street Journal poll) don't want the Supreme Court to allow state
legislatures to be able to prohibit third-trimester abortions? Surely
not: Polls find that even larger majorities want such prohibitions.
Many people believe, wrongly, that Roe protects only first-trimester
abortions, a misimpression that most polls (including the NBC/Journal
poll) go out of their way to foster. Many people also believe, wrongly,
that overturning Roe would automatically lead to a national ban on all
abortions. What polls on Roe really measure is public opposition to an
immediate national ban.
The relevance of these polls to actual political behavior is tenuous.
The public's support for Roe does not even translate into opposition to
the confirmation of Supreme Court nominees who might vote against it
- as public support for John Roberts and Samuel Alito makes clear.
Nor is Roe all that well-settled a precedent, which is perhaps what
occasions all the somewhat nervous claims that it is. The last time the
Court really reconsidered the issue, in a 1992 case called Casey, it
junked the trimester scheme that popular imagination and pollsters
still consider central to Roe. When the Court considered the biggest
abortion-related controversy of the last decade, in its 2000 decision
on partial-birth abortion, the authors of Casey could not agree about
what Casey meant.
In the partial-birth decision, the Court threw out laws in part because
they could (supposedly) sometimes be applied in unconstitutional ways.
In its Ayotte decision last week, it unanimously suggested that the
possibility of unconstitutional applications was not a good enough
reason to throw out an abortion law. State legislators cannot be blamed
for not being able to figure out what regulations constitute an "undue
burden" on the right to abortion, and thus will be struck down by the
Supreme Court, because the undue-burden standard depends on the
subjective feelings of the judges.
The Court would be perfectly justified in concluding that its attempts
to micromanage abortion policy have failed, in regarding this failure
as an indictment of its pretensions to have any special expertise or
authority to do so, and in scrapping Roe. In Casey, the Court argued
that many people have relied on the availability of abortion in the
event of contraceptive failure, and that this fact was a reason to
continue to protect a right to abortion. But legislatures are perfectly
capable of deciding what weight to give to that fact.
The justices may prefer to move incrementally. They may decide, when
they again rule on partial-birth abortion later this year, to rule
narrowly: to cede just enough legislative authority back to
legislatures to let them prohibit partial-birth abortion. Little by
little, they might restore democracy in this area.
Roe's twin fortifications are there to protect each other's weaknesses.
The alleged popular ratification of Roe is invoked to cover its legal
implausibility. But a truly populist constitutional law would allow
prohibitions on late-term abortions and substantial restrictions on
early-term abortions, so the majesty of the law and the authority of
the court have to be invoked against this threat. The only way to keep
the game going is through sleights of hand, diversions, and illusions:
Roe creates only a limited right to abortion; everyone loves Roe; it is
settled law; repeat as necessary.
The pro-abortion activists are right to be alarmed.