Arkansas Democrat-Gazette

Dishonesty in Roe’s end

- PAUL WALDMAN

While anti-abortion activists may be popping champagne over the Supreme Court’s imminent dispatchin­g of Roe v. Wade, in the heart of the Republican establishm­ent the response has run from “Let’s talk about something else” to “This is not really a big deal.” It’s not hard to see why: Republican­s know their maximal opposition to abortion rights is extremely unpopular.

Which is why many of them are trotting out old arguments that seek to characteri­ze what they’re about to do as fundamenta­lly moderate and deferentia­l to the political parts of our system — a return to a supposedly calmer and more accountabl­e past as opposed to a radical rollback of rights. Overturnin­g Roe, they say, only puts the question where it belongs: in the hands of our democracy.

This is profoundly disingenuo­us. If nothing else, they at least ought to be honest about what it means now that they’re about to achieve their long-standing goal.

The first part of their argument is that the Supreme Court’s decisions in Roe and Planned Parenthood v. Casey made abortion into an unnecessar­ily contentiou­s issue. Justice Samuel Alito Jr. said as much in his draft ruling:

“And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.

“It is time to heed the Constituti­on and return the issue of abortion to the people’s elected representa­tives.”

This argument fails as both a statement of what the Supreme Court is for and as historical analysis. The court doesn’t decide questions of rights in order to “settle” political disputes, even if the justices may sometimes hope that their rulings would do so.

That’s not their job. As conservati­ves always tell us when they pontificat­e on the importance of “originalis­m,” the role of the justices is to channel the wisdom of the Constituti­on and let the political chips fall where they may.

The nature of basic rights, moreover, is that we don’t put them up for a vote. The Supreme Court has many times in the past protected rights in ways that were unpopular, or at the very least politicall­y contentiou­s, but they did so because they judged those rights to be fundamenta­l, whether it’s free speech or due process or the right to worship as you choose.

As for the idea that conservati­ves object to the courts substituti­ng their judgment for that of the people and their elected representa­tives, they themselves ask the courts to do just that all the time.

They’re constantly filing lawsuits begging the Supreme Court to overrule voters and elected officials when they don’t like policy outcomes democracy produces, whether it’s the Affordable Care Act or civil rights for gay Americans or environmen­tal protection­s. Every time the conservati­ve supermajor­ity on this court does so — which it has many times already, and will surely do again many more times in the near future — Republican­s cheer.

When the court struck down Washington, D.C.’s handgun ban in 2008 by declaring for the first time in two centuries that the Second Amendment contained an individual right to own guns, conservati­ves didn’t say, “This ruling will only inflame this contentiou­s issue! The people should decide!”

No, they celebrated it. And if the court makes it impossible for states and localities to pass any reasonable regulation­s on guns at all, they’ll celebrate again.

Furthermor­e, the idea that we would have reached a quiet and respectful consensus on abortion had the court not stepped in is prepostero­us. There are deep and profound reasons, both philosophi­cal and political, why this issue is so contentiou­s.

It became so as part of a backlash against the women’s movement and the threat it posed to conservati­ve ideas about women’s proper place as subservien­t to men. In the late 1970s, the religious right made opposition to abortion central to its organizing after it became clear that what had previously animated its adherents — preserving racial segregatio­n — had become too politicall­y toxic.

There’s much more to that story, but no matter what the Supreme Court did or didn’t do in 1973, abortion politics were going to be intense and passionate — just as they will continue to be if and when Roe is overturned. Chances are that this decision will make abortion politics even uglier and more vicious, as Michelle Goldberg explains. That likelihood won’t convince conservati­ves that overturnin­g Roe was a bad idea; they’re fine with more contentiou­sness if they get the outcome they want.

Even as conservati­ves argue that overturnin­g Roe enhances democracy, Republican­s are trying to impose their view of abortion on the whole country, whether everyone wants it or not. GOP state legislator­s are trying to come up with ways to keep women from seeking abortions in blue states where it will be legal. Congressio­nal Republican­s are planning to pass a nationwide abortion ban the next time they control Congress and the presidency.

The truth is that conservati­ves just don’t think women have a fundamenta­l right to bodily autonomy — for them, it’s not a right at all. They do, however, believe that even the most rudimentar­y zygote has a right to be carried to term — a right that overwhelms almost all considerat­ions of the welfare of the woman carrying it.

They’re free to make that case. But please, don’t tell us they want Roe overturned because they’re so committed to the process of democracy.

Newspapers in English

Newspapers from United States