The most significant developments in the past year suggest a potent originalist future.
In Federalist 84 Publius objects to a national bill of rights. He observes that similar measures proclaiming all manner of liberties in state constitutions “would sound much better in a treatise of ethics than in a constitution of government.” One might make a similar comparison about the recent war of opinions and footnotes between Justices Thomas and Ginsburg on abortion. Their jurisprudential debate pertains to important questions, even ultimate ones. But it would sound much better in a legislative record than in a court of law. But Roe v. Wade has relieved legislators of the responsibility to grapple seriously with serious issues, while simultaneously empowering judges to pose as Platonic guardians on a question that requires political, not judicial, resolution..
When the Court denied certiorari this week in a challenge to an Indiana abortion ban, Thomas concurred on the Court’s per curiam opinion that upheld Indiana’s law on treating fetal remains after an abortion with respect instead of like “infectious waste.” However, he also wrote separately in this opinion disagreeing with the Court’s refusal to hear the 7th Circuit Court of Appeal’s opinion that struck down Indiana’s law that prohibits abortions motivated by race, sex, Down syndrome or disability. Thomas specified that states that prohibit abortions in this manner have a “compelling interest in preventing abortion from becoming a tool of modern-day eugenics.” His opinion said such bans apply to a “mother” who makes these choices, to which Justice Ginsburg objected, via footnote in a dissent, that “a woman who exercises her constitutionally protected right to terminate a pregnancy is not a ‘mother’….”
These questions are, again, vital and profound. But an equally important question is why they are being debated in footnotes and concurrences shuttled between Justices’ chambers rather than in the legislative forums where they could actually be politically resolved.
The reason, of course, is Roe. The battle of opinions between Thomas and Ginsburg, whatever its philosophical merits or faults, illustrates how constitutionalizing this issue has paralyzed the polity’s ability to resolve it. Because the Court will not permit legislative compromise, neither side seeks it. On the contrary, both gravitate to the extremes.
That point is illustrated by Alabama’s recent abortion ban, whose sponsor, state Rep. Terri Collins, rejected exceptions for rape despite having supported them in previous measures. Collins said the bill was not meant “to be our long-term bill but to get the courts to revisit this issue of, is the baby in the womb a person?”
In other words, the law’s sponsor never meant for it to be enforced. It was meant to be taken seriously but not literally. On abortion, legislators are able to do that—pass laws they would not support if they were actually going to be enforced—precisely because Roe is in place. The protection of Roe also, not incidentally, freed the Alabama law’s critics to denounce it literally in the confidence that, as an actual legislative measure, it was unserious.
Neither of these dynamics is politically healthy. The task of legislators is not to posture in order to provoke jurists who are actually in charge. Rather, legislators’ job is to legislate and, crucially, to be accountable for it. They are not accountable for that which no one actually believes will occur, especially when the reason is that judges will not permit it. Nor is it politically healthy for the Court to shelter one side’s absolute position while disenfranchising the other’s.
Roe has shoved the abortion debate to the poles of banning everything or permitting anything. It has distorted politics by causing disenfranchised citizens to vote on either side of a single issue because the Court discounts their voices. But perhaps the most important result is how Roe has also let legislators off the hook for operating at extremes. The result is cost-free showboating and absolutism at both ends.
In the absence of Roe, legislators would be compelled to deal seriously with literal things, knowing the laws they pass will be enforced on their voting constituents. It is unlikely that legislators so situated would operate at extremes that are foreign to public opinion. They would instead be encouraged to confront moral complexities in a serious and moderate way—complexities that few serious people would resolve absolutely or at least without engaging the opposing argument.
One can certainly argue that, in its nature, the issue of abortion is not prone to moderation. Granted, the claims of both sides—bodily autonomy on one versus the preservation of life on the other—tend toward absolutes. But in the real political world, which is to say one in which the Court allows politics to operate, there are almost never total, unregulated rights to anything. Mary Ann Glendon, whose pro-life credentials are impeccable, has written that European countries that have struck compromise positions—more support for child-rearing, more restrictions on abortion as pregnancy advances—have been able to do so because they do not think about abortion in terms of absolute rights.
Roe, instead, has created a legislative fantasy-land free of meaningful politics or serious accountability. The odds that a legislature like Alabama’s would actually ban abortion without exceptions if it knew the law would be enforced are slim. (If pro-choice advocates are as confident as they claim in the popularity of their cause, they would do better to take down Roe’s defenses and allow the legislative process to work.) Similarly, legislators in pro-choice states can oppose any restriction on abortion at any time because they can hide behind judicial robes.
Yet polling consistently shows that Americans would resolve abortion to neither side’s absolute satisfaction. Self-descriptions of “pro-life” or “pro-choice” yield close and seemingly insurmountable divisions. But when pollsters ask more nuanced questions, which legislators would be compelled to do in the absence of Roe, they get more nuanced answers. The most common position by far is that abortion should be “legal only under certain circumstances.” This can be framed as one will: “Permit abortion but regulate it” or “ban it with exceptions.”
Either way, Americans do not support absolutes unless constraints imposed by the Court force them to pick a side. A genuine political debate with, crucially, actual consequences would produce varying degrees of restrictions by state—which is appropriate under a system of federalism—but also likely a degree of moderation in all of them that is absent in today’s conversation.
That is generally the case with rights claims. As Glendon notes, they tend toward the absolute, discourage moderation and banish politics. That is nowhere clearer than in the case of Roe. With considerable numbers of Americans identifying with parties on the basis of their views of abortion—which has become a synecdoche for a variety of other issues—overturning Roe might be the quickest route to a genuine political realignment that breaks today’s two-party stalemate.
Instead, we are now approaching the fifth decade of Platonic guardians’ abortion precedent on the Supreme Court providing cover to legislatures to act without consequence. In turn, these legislators are pushing the issue toward extremes they do not actually support in order to get the Justices’ permission to take the more moderate course real-world politics would dictate. This distortion of politics is Roe’s true legacy.