Blows to Roe
Texas’ new law forces Americans to have the abortion debate we need
ONE of the problems with abortion law is that it’s difficult to separate how we feel about abortion from how we feel about the law.
This is worth keeping in mind as Texas and Florida Republicans, who are pushing legislatively against abortion, prepare to face down congressional Democrats pushing the other way. Meanwhile, the Supreme Court has set a Dec. 1 date to begin hearings in Dobbs v. Jackson Women’s Health Organization, the Mississippi case that could end with the high court vacating Roe v. Wade, the 1973 landmark ruling that legalized abortion.
That’s partly why today’s fight is such a bitter one: When the Supreme Court made that decision almost 50 years ago, the ballot box ceased to matter. Roe kept the fundamentals of abortion from being addressed through democratic negotiation, as the question of abortion was entrusted to the pronouncements of semi-mystical figures in black robes.
Abortion opponents were in effect disenfranchised by the Supreme Court. Able to win elections year after year but unable to change the law, they instead were restricted to tinkering around at the edges of abortion policy.
Abortion-rights advocates, forever hysterical, insist that if Roe is overturned, then, overnight, women will be deprived of abortion access from sea to shining sea. But that is not the case. Before Roe, 30 states prohibited abortion and 20 states permitted it in at least some circumstances. These were decisions reached by state legislatures, and that is how these decisions should be made — we have 50 states for a reason and, as even pro-abortion legal scholars will concede in their more honest moments, the Constitution itself is utterly silent on the question.
Before Roe, abortion was a matter for the democratic contest, and both parties had pro-life and pro-abortion elements in them: Dwight Eisenhower
was generally supportive of abortion rights and Ronald Reagan as governor had signed the nation’s most permissive abortion law, while liberal figures such as the Rev. Jesse Jackson and Al Gore were, in those days, anti-abortion. Approaching these divisive questions democratically in the legislatures provides a path to consensus and bipartisan compromise — but resolving them via Supreme Court fiat provides only an opportunity for partisan power politics. After Roe, the mutual weaponization of abortion by each party was inevitable.
Texas’ new abortion law is an attempt to outlaw the procedure after six weeks of pregnancy through a legal arrangement designed specifically to evade a challenge under Roe. Florida’s proposed law is very similar. Congressional Democrats propose to preempt these laws at the federal level, though it is far from clear they have the constitutional power to do so.
The right outcome here is — as it often is — the one that is going to disappoint everybody.
The Supreme Court should overturn Roe v. Wade, not because abortion is evil — though it is evil — but because Roe is bad law, a fantasy woven out of the 14th Amendment, which contains not a word about abortion or the right to privacy the court has alleged to discover there. Its defects are obvious even to liberal thinkers such as Edward Lazarus, a clerk to Roe author Harry Blackmun, who declared that the opinion “borders on the indefensible.”
Congress should keep its nose out of the question, because Congress has no legitimate power to micromanage how states regulate abortion. That will disappoint the prochoice lobby, who take a bizarrely sacramental view of abortion and a scriptural view of Roe.
But pro-lifers should gird ourselves for disappointment, too. Overturning Roe is not the end of the work but the beginning. Once the subject is returned to the legislatures, some states will abolish abortion in all or most circumstances, some states will maintain abortion regimes that are as permissive as they were under Roe or even more so, and most states will, in all likelihood, follow public opinion in taking a generally liberal approach to abortion in the first trimester and then an increasingly restrictive position thereafter.
Instead of trying to convince five out of nine Supreme Court justices to see things their way, each side of the abortion debate will have to address itself to 100 million or so Americans on the other side, who have a different view.
In other words, we will have to talk to each other. But that is how democracy works.
Kevin D. Williamson is the author of “Big White Ghetto: Dead Broke, Stone-Cold Stupid, and High on Rage in the Dank Woolly Wilds of the ‘Real America.’”