Sunday, December 11, 2005

Strategizing Roe v. Wade

There is a quiet but interesting debate amongst pro-choice liberals regarding whether or not they should continue to support Roe v. Wade. Those who argue we should abandon Roe claim that the decision has only galvanized conservative activists, who have managed to severely limit abortion access (especially for the poor) even under Roe's reign. At the same time, active support for abortion laws has drained, as sympathetic persons believe that Roe has "solved the problem," and turn their attention elsewhere. The net effect is that, with the exception of upper-class white women, abortion remains extremely difficult to get while other issues critical to woman's health (education on/access to contraceptives, childcare support, maternity issues, pre-natal care, etc.) are off the table. There are other arguments as well (Roe was simply a bad decision; Roe solidifies the GOP coalition and places out of reach voters Democrats should be winning) but the "it's pro-choice to oppose Roe" claim strikes me as the most interesting.

I've been known to express sympathy with this view. Indeed, my very first column for the on-campus journal I write for forwarded this very idea (though more to spark debate--I wouldn't call myself invested in it). In this light, I'd like to point you to a spectacular debate on the topic "Should Liberals Stop Defending Roe?" The participants are Texas Law Professor Sanford Levinson (yes) and Yale Law Professor Jack Balkin (no). And while both make excellent points and are clearly extraordinarily intelligent, I've been nearly completely swayed by Professor Balkin.
There are, I think, at least four reasons why this is a bad idea.

First, one doesn't "give up" on constitutional rights unless one is already convinced that they aren't very important or don't actually exist. Should liberals have given up on Brown v. Board of Education in 1962 when the going got rough if they genuinely believed that racial equality was a fundamental right of human beings? Or to take an example near and dear to your heart, Sandy, should we have given up on constitutional limits on presidential power and constitutional prohibitions on torture because most Americans thought our repeated carping on these issues unpatriotic, and that was bad for Democrats? If we don't stand up for the constitutional rights we believe in when they are politically inconvenient, what is the point of having such rights? Thus, to convince me that we should give up on Roe you'll first have to convince me (and many other people, too) that the right to abortion isn't all that important to women's liberty and equality; or that despite its importance, Bork and Scalia were right and that there is no such right in the Constitution.

Second, we must consider the consequences. Although overruling Roe will not change the law of abortion in liberal states like New York, it will produce significant restrictions on abortion in a very large number of other states, and outright prohibitions in a handful of still other states. In a post-Roe world, abortion will probably still be available somewhere in the United States. Even so, we will probably return to a world (indeed, a world we are already approaching under current doctrine) in which abortions are freely available to the rich but not the poor. Obtaining an abortion in another state requires time to travel, making excuses (i.e., lying) to employers and to family members about one's whereabouts, and considerable expense. Many states currently have waiting periods, and no doubt more states will adopt them—with more draconian requirements-if Roe is overruled. Current waiting period requirements increase the costs of abortion considerably because they often require two separate trips. That expense-and the deterrent effect on the poor-can only increase in a post-Roe world. Lack of access to safe and affordable abortion for poor women increases health risks for those women, and condemns them to lives of increasing economic hardship and dependency, not to mention the costs to society as a whole. The Democratic party has long claimed to stand for sex equality and for economic justice. Capitulating on Roe is inconsistent with both commitments.

Third, the conventional wisdom that overruling Roe will simply return abortion to the states underestimates the strategy, the devotion, and the ambitions of the pro-life movement. If abortion is murder in Alabama, it is equally murder in New York. The pro-life movement will almost certainly push for a national solution to the abortion problem, which means that we may get more restrictive federal abortion legislation that will preempt liberal laws like those in New York. No doubt a nationwide ban on abortion is not politically feasible in the short run; what is feasible, however, even with the changed political climate that we both imagine, are significant restrictions on abortion at the federal level, especially if the Republicans maintain control over at least one branch of Congress. Moreover, if Republicans control the White House, they can do enormous mischief to abortion rights nationwide through administrative regulations that have the force of law and preempt more liberal state laws to the contrary.

Fourth, giving up on Roe in practice will take down more than Roe itself. It will put enormous pressure on other Supreme Court precedents that protect people from state interference in matters of family life, contraception, and sexual autonomy. The pressure is not logical but ideological. It is easy enough for a lawyer to distinguish Roe from earlier cases protecting the right to use contraceptives (Griswold, Eisenstadt, Carey) and later cases protecting the right to same-sex intimacies (Lawrence v. Texas). After all, neither contraception nor same sex sodomy involves the destruction of an embryo or fetus.

Nevertheless, this fails to account for how Roe would be overruled in practice. Imagine how one would "give up." You can't send secret signals to the liberal justices saying "psst, hey Ruth Bader Ginsburg, take a fall on the next abortion case." Rather, giving up on Roe means not opposing new Republican judicial nominees who are committed to overturning Roe (as opposed to merely limiting it). But those sorts of judges will likely oppose much of the other existing jurisprudence on sexual autonomy. The opinions they write will likely emphasize that it is wholly illegitimate for courts to discover and enforce rights not specifically enumerated in the Constitution (unless, of course, it's unenumerated rights that conservatives happen to like! See the federalism decisions). Whether or not cases like Lawrence are technically distinguishable by well-trained lawyers, they may not be distinguishable in the view of the new Supreme Court majority.

Balkin goes on to show off-topic impacts (two actually: the type of judge who will overturn Roe will also vote against liberals on non-sexual privacy cases, and abandoning Roe would make it part of the "anti-canon" of cases such as Plessy and Dred Scott--which will provide a foothold by which conservatives can push for massive changes in prevailing constitutional theory) and provide solvency (push for a Freedom of Choice Act to put Republicans on the record and legitimize Roe democratically). Would that my debaters could write like this!


Anonymous said...

What is stopping upper-class black women from getting abortions?

Mark said...

What is actually curious about both sides of the argument is the equating of "liberal" = "pro-choice" as if one might not be a pro-life liberal. Is that true? Is the set of pro-life liberals by necessity empty? Why is that?

What tenents of liberalism mean imply by necessity support of abortion?

Jim Satterfield said...

mark says "What tenents of liberalism mean imply by necessity support of abortion?". This is of course an incorrect framing of what the liberal believes. What they support is not the abortion, but the woman's right to choose to have one. Given that the overwhelming opposition to women having a right to make that choice is based in religion it is a belief in not having someone's religious dogma enforced on someone who does not share it.

Jonah Ostroff said...

While I agree with Jim's re-framing of the liberal belief, I don't think it's really accurate to call Mark's statement "incorrect". Is the support of abortion inherently different from the support of a woman's right to have one? Clearly Mark didn't mean that liberals support mandatory abortion, or that we think abortion is a wonderful thing. So what part of his phrasing do you object to, Jim?

I understand that Mark's way of putting things makes the abortion debate significantly harder for the liberal side. But if we really want to win this argument, we need to learn to do so even when it's framed this way. I'm a math guy, so when I see a bad theorem I don't look for a different one in order to prove the opposite; I look for a contradiction, and then I work from there. When the pro-life camp claims that abortion is murder, the proper response isn't "I support a woman's right to choose." Rather, it's "No, abortion isn't murder, and here's why...."

There's been a lot of discussion in the Democratic party lately about learning the Republican skill of framing the debate. Sure, let's learn that. But in the meantime, we'll need to make do with what we have and win arguments on their turf.

Also, hi Dave.

Pooh said...


Interesting point, not sure I agree. I think the more classical liberal view would be "that's you opinion. I respect that, but I (and polls say) most americans disagree to at least some degree. You should not be able to impose that belief upon me."

I mean, if to win the argument you have to convince someone to move from a position that they will literally not budge from. The set of potential scientific discovery that would convince pro-lifers that abortion isn't murder is null...

Anonymous said...

Hi yourself, Jonah.

I'm disappointed no one has addressed my question. I admit it was poorly worded, as I tossed it off a bit too hastily. It should be 'What is making it difficult for upper-class non-white women to get abortions?'

David Schraub seems to be suggesting that current legislation makes it harder for non-white women to get abortions, regardless of economic status. This leaped out at me because it's the first time I've heard such a thing.

Pooh said...


Good point. To the extent that race is a useful proxy for economic status, the statement is redundant. And beyond that extent, it's false.

This isn't to say that a repeal of Roe won't disproportionately affect minorities, as race remains a somewhat useful proxy because economic differences remain.

David Schraub said...

I'm guessing that Jonah was saying hi to me, since I'm his roommate. But he's a friendly guy--maybe he was saying hi to you too.

As to the whole minority thing, first of all, it is primarily being used as economic shorthand--black women are disproportionately poor, and thus are disproportionately inable to get abortions. This matters on a racial level because it impacts our solvency ideas on issues that are more tightly race-linked--such as black poverty or family structure. So I think it is valuable to point out how even "pure" economic disparities have racial consequences.

But beyond that, it may well be that there are problems that prevent black women from getting abortion above and beyond those relating to poverty. For example, minority women may be more likely to be concentrated in communities that are further away from abortion services providers. Minority women may be less likely to have connections to more financially solid companions who could assist them in getting abortions that they couldn't get themselves. They may not have as many peers who can "cover" for them (at work, for example, or caring for young children) while they get the procedure. There may be different cultural barriers in minority communities blocking abortion access than do exist in white cultures (Kimberle Crenshaw has done excellent research on this regarding domestic violence and abuse). All of these could be race-linked problems that more acutely manifest themselves in minority communities. I'm not saying they DO (I haven't done any research into any of these), only that it might explain a particular disparity that exists on race lines rather than merely economic lines.

Jonah Ostroff said...

Yeah, Schraub is right. I was talking to him. But for the sake of inclusion, hi other Dave as well.

On to Pooh:

Why do you limit the possible arguments to the realm of scientific discovery? A more important debate I think would be some questioning of the term "murder". Yes, abortion ends a life (or the possibility of one), and science isn't going to contradict that. But so do, say, car accidents. There are a lot of steps along the way from "abortion kills" to "abortion is murder", and I think this is where we really need to challenge the opposition.

One thing that I think is worth realizing about the pro-life movement is that if we accept their (false, I believe) premise that abortion is murder (or some less harshly worded equivalent statement), the suggestion that such a belief shouldn't be imposed on others falls apart. If I truly think that some action is wrong, and so wrong that I'm willing to equate it to something like murder, then no poll is ever going to convince me that I should allow others to commit that action. In order, then, to really win the abortion debate, we can't rely on arguments about privacy, or the inability to impose one's beliefs on others. We have to nip the pro-life argument at the source, and that inevitably involves dealing solely with the morals of abortion.

Pooh said...


I disagree (natch). First of all, the debate is unwinnable on those terms. I was using scientific discovery as an example, but I can think of no possible breakthrough of any type that will convince an "abortion-is-always-murder" believer that they are wrong. As I said, a null set.

To me, such cast-iron belief on what is an ephemeral question is hubristic in the extreme, hence my unwillingness to impose my beliefs on you by fiat.

Alternatively, arguing on those terms turns mere stubborness into the greatest rhetorical tool available. It substitutes strength of belief for force of argument. 'I believe this or that so strongly that we musy debate on my terms. I play 162 games at home, every year.'

I suppose we could be arguing semantics here. What I might decribe as reaching the point of agreement that reasonable minds can differ on a subject you might say I have moved them from there moral position.

Stupid debater games... ;)

Jonah Ostroff said...

Yeah, you're probably right. I don't really mean to suggest that we always defer to the more stubborn side when it comes to how we frame our debate. But I do think it's important for Democrats to develop better strategies for talking about abortion that don't rely on a particular setup. We might not be able to convince anybody, but we should at least be able to logically refute our opponents without having to change the subject.

Pooh said...

Well, first of all, the "no abortion never" people are few and far between. First you establish "life of the mother". Ok, that's self-defense. What about rape/incest. Well not self-defense, but still...and from there

Of course, no one is really open to convincing on this, it's like you trying to convince me that Basil's is better than Bill's.

David Schraub said...

That last one wouldn't be that hard actually--Bill's is out of business now.

Pooh said...

Next thing you'll tell me santa isn't real. That's tragic news.

pacatrue said...

Pooh, apparently Schiller has been broken too. Where will all the insanity end?

Back to the old abortion thing, much of this debate in the Comments has forgotten a rather important little bit - the baby is inside a human being, not a test tube. No scientific evidence can convince many people that a fetus is or is not a life. But the status of the unborn is only one half of the moral question. The other half is that this life is simultaneously its own and part of another human, the mother. There is no other relationship like this, extreme dependency on another in ill health is close but not the same, and it is this relationship which makes the abortion decision so hard. As I have become fond of saying, if your position on abortion remains the same whether the unborn baby is part of a woman or living inside a box, then you need to re-think it.

Pooh said...

Hey, at least Schiller got a ride on Air Force One first first.