How to Think About Roe v. Wade After 40 Years

Roe v. Wade remains, for us, the most contentious decision of our Supreme Court.  Here’s the advice of our Supreme Court:  The opponents of Roe should get over it.  In its opinion in Planned Parenthood v. Casey (1992), the Court explained:

Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of  intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.

The rare, comparable case that the Court highlights in Casey is Brown v. Board of Education.  Reversing Brown and restoring the constitutionality of segregation would throw the nation into confusion and chaos.  And that means that Brown has “rare precedential force.”  The burden of proof that could lead to its reversal is more severe than other precedents. It would require “the most convincing justification.”  The Court claimed to authoritatively resolve the controversy that produced a national division by binding the country together through a common constitutional mandate.  The same goes with Roe; its reversal would have the same profoundly disconcerting effects, especially on the women who had “organized intimate relationships and made choices that define their view of themselves and their places in society” as if the Constitution protected their right to choose an abortion.  Women have come to assume that they can exercise that right “in the event contraception should fail” or in response to “the consequence of unplanned activity.”

Once in a great while, the job of the Court is to end political controversy, and to reopen that controversy by addressing “error” in the relevant “landmark” opinion should only happen if evidence for the error is overwhelming.  “Liberty,” the Court observes, “finds no refuge in a jurisprudence of doubt,” and that’s why the Court is offended that the Roe’s “definition of liberty is still questioned.” Its “obligation…to define the liberty of all” should be beyond question.

Although in 1973 Roe was called, by some, judicial activism, not reversing the decision in 1992, the Court claimed, is now an act of judicial restraint. Roe, like Brown, had become such a fundamental part of our law and our way of life that its reversal would cause Americans to lose confidence in the Court and the Constitution itself.

There are Americans, of course, that accept this judgment of the Court and even add to it.  Just as Brown was a landmark in securing the equal rights of black Americans, Roe did the same for female Americans. As the Court explains in Planned Parenthood, women have the right to be treated as free individuals—or not saddled with the specific biological burden given to women—under the law.  Women, like men, have “the right to define one’s own concept of existence” and to decide for themselves whether or their identities include having babies.  Indispensable to our liberty is recognizing that “attributes of personhood” aren’t to be “formed under the compulsion of the State.”  The State can’t “insist” that any particular woman “make the sacrifice” of becoming a mother.

To identify Roe with Brown is not only to say, of course, that our Constitution commands that citizens no longer argue either for segregation or against legal abortion.  The controversies over those issues have been resolved, the Court says, by the most reasonable part of our political community.  Surely almost anyone would say that there would be something odiously unconstitutional and deeply unreasonable about a presidential candidate who today pledged to appoint justices who would reverse Brown, despite the fact that the president, under the Constitution, has the right to appoint justices for any reason he pleases. The Court suggests the same about a president (or a Congress) who would use his constitutional powers to work to get Roe overturned.

Identifying Roe with Brown also, of course, has the rhetorical intention of connecting it with the life-transforming Court decision that almost every American regards as not only legitimate but profoundly beneficial.  Almost no one is calling Brown judicial activism these days, and anyone who did would be immediately marginalized.

But the Court’s command to think of Brown and Roe in the same way, both as irreversible and even unquestionable superprecedents, isn’t being that widely obeyed.  Here is one piece of evidence:  I asked the students on the first day of my constitutional law class yesterday (as an “icebreaker”): “What’s the best thing and the worst thing the Court’s ever done?” Brown won by a mile as the best decision.  Roe came in first in the worst category, although the class may well have been fairly evenly and intensely divided over whether Roe was good or bad.

Surely, that’s partly because most students at my college are at least fairly religious, not to mention pretty conservative in general. But the class members who dissed Roe didn’t do so for explicitly religious reasons.  The typical argument was something like there was no justification in the Constitution for the decision or the Court told us, as if it knew, when human life begins.  The objection was always that the decision entailed judicial activism—or, as critics also say, judicial legislation (which should be an oxymoron).

The Dred Roe

Opponents of Roe—both pro-lifers and proponents of judicial restraint—compare the decision not with Brown, but with Dred Scott.  In the Dred Scott case, the Court declared that the Constitution is fundamentally pro-slavery and that slaves are a form of property no different from any other.  The right to property in a slave is so completely protected by the Due Process Clause that Congress can’t do anything at all to stop the spread of slavery into the territories.  That judicial activism based a deeply erroneous application of constitutional principle that made legislative compromise impossible, contributed to the country’s polarization over a divisive issue, and hastened the coming of war.

The principle of the Court’s opinion is that it’s clear that our Founders thought that the Africans brought over to our country don’t have—and their descendants will never have–rights.  The theory of our Constitution and Declaration was that they were “beings of an inferior order.”  With firm, authoritative declaration of that principle, the Court hoped to create a kind of superprecedent that would bring controversy tearing the country apart to an end, and the Court’s opinion was received that way by slavery’s supporters.  But its real effect was just about the opposite of its intention.

Opponents of Roe often make it a point to praise as correct and noble Lincoln’s declaration in his First Inaugural that, although Dred Scott had to be obeyed in terms of the outcome of the particular case, it wasn’t the final word concerning the meaning of the Constitution.  Those who hold the power in the other branches of government were free to argue against its erroneous and degrading conclusions and could work to get the pro-slavery interpretation reversed.  Ordinary people, Lincoln added, aren’t bound to the Court’s interpretation of the Constitution.  They are free to think and act politically according to their own lights.  To think otherwise is to deny that “We the people” really rule.  Just as the president served the people and their Constitution by opposing the judicially imperialistic or even tyrannical view of the Court that Dred Scott was the final word concerning the Constitution, the president today does the same by resisting Roe. (We, sadly, haven’t had a president who has explained with Lincolnian clarity—or any clarity at all—why Roe was wrongly decided, although a few of them have clearly appointed justices with the intention of getting the decision reversed.)

So for the constitutionally attuned parts of our country, the big question is whether Roe is more like Brown, the race-based decision that most legitimates the Court in our eyes,or more like Dred Scott, the race-based decision that most discredits it.  Who can deny that Brown—whatever its quite real flaws in terms of argument and implementation—made a bad situation and basically unconstitutional situation—segregation–much better?  Who can deny that Dred Scott made a bad situation—the erosion of the national and properly constitutional consensus that slavery shouldn’t spread throughout the territories—much worse?  Has Roe made` our country better or worse?  Has it improved or has it distorted our understanding of our Constitution?

My own opinion is that Roe is more like Dred Scott than Brown, although I want to curb the indignation of its opponents by adding that it’s not completely like Dred Scott.  The two cases are similar, first of all, in the form of the Court’s argument.  Both decisions are based on “substantive due process”—or a denial of the right to life, liberty or property for an arbitrary or at least insufficiently compelling reason. Dred Scott is about the slave owner’s right to property, and Roe about the pregnant woman’s right to liberty.  Now by saying that abortion is a right prior to “viability,” we can say the Court is really saying that the fetus, or unborn child, is the woman’s property as long as it’s dependent on her body.  Because she has a property in her own body, she is presumed to have the liberty to dispose of any part of it as she wants.  Neither the slave dependent on his owner nor the fetus dependent on the woman is understood, under the Constitution, to have any rights that people are bound to respect.  The Due Process Clause of either the 5th or the 14th Amendment doesn’t protect them.

The Deliberate Sense of the Community

Dred Scott and Roe are also similar insofar as each made political compromise impossible.  That charge can’t be brought against Brown because there was, in fact, no movement in the states segregating their schools toward integration, no compromising going on.  But through the 1850s, the contentious issue of the expansion of slavery into the territories had been handled by legislative compromises.  And, as Ruth Bader Ginsberg complained before she became a justice, Roe abruptly brought to an end a nascent national dialogue on abortion that was leading a good number of states to “liberalize” their restrictions on abortion.  Roe meant to—and largely did—end real political dialogue on abortion in our country.

The impulse to compromise—a basically legislative impulse—was displaced—in both directions—by strict adherence to high principle.  Consider what happened to our two political parties.  The official Republican position now is that all abortion should be illegal—with no exceptions for rape or incest.  The official Democratic position is now that the right an abortion is so absolute that it’s even an infringement on liberty to say that abortion should be safe, legal, and rare. Most Americans are somewhere in between these two positions.  That’s why each party scores easy points by highlighting the extremism of the other.  And obviously the Democrats scored better during the last election.  One reason is that their candidate authentically embraced their extreme position, whereas Romney was more of a blushing waffler.

So Roe, to say the least, hasn’t promoted deliberation and moderation. Instead, it’s producing enduring and increasingly unyielding extremism.  Roe was especially good for the pro-life movement, which barely existed prior to the outburst of indignation at the Court’s absolute denial of rights—or any real human status—to unborn babies.  It’s the pro-lifers who are aggressively evangelical, who knock themselves out trying to convince their fellow citizens who babies are.  The pro-choicers, meanwhile, are somewhat demoralized by having to play defense. They take the approach that their opponents are unreasonable zealots who have no respect for what our Constitution and our Court command.  As long as Roe is in place, the two sides don’t really have to talk to each other.  Pro-choicers who are convinced that pro-lifers are unreasonable and so basically unpersuasive, it seems to me, should want Roe reversed.  The right to an abortion would seem more legitimate and abortion itself would become more accessible if it had real political affirmation.  And, of course, members of our legislatures, both state and national, often tremble at the prospect of a Roe reversal because then they would have to be about the hard and risky work of compromise.

It offends both the pro-choicers and the pro-lifers to think of abortion in terms of compromise.  If the issue is either the rights of the unborn or the rights of the woman, the conclusion is that if someone has rights, he or she should get to exercise them.  So we now regard the pre-Civil War and even constitutional compromises over slavery as both immoral and contrary to the individualistic nerve of the Constitution itself.  We all agree these days that, if you put aside affirmative action as a remedial or “diversity” vehicle, then our Constitution is color-blind; our law regards persons as persons. The Fourteenth Amendment extends that color-blind spirit of constitutional law to state law.  We just about all agree that slavery and segregation were wrong, and so we agree that Brown was right. It seems so clear now that race-based legal distinctions were always in conflict with our constitutional tradition, and the Fourteenth Amendment removed any doubt about that fact.

These unambiguous facts can serve to remind us that it’s unfair to push the comparison between Roe and Dred Scott too far.  We can say that even the 1787 constitutional compromises on slavery were animated by an intentionally anti-slavery spirit, but we can’t say that our Constitution is animated by an intentionally anti-abortion spirit.  We really can’t turn very effectively to our Founders to figure out how they stood on the status of the unborn.   They weren’t particularly concerned with it. The claims of both sides in the abortion debate flow clearly from our Declaration of Independence.  Nothing is more foundational than the right to life.  But it’s also true that our Constitution (following the Declaration’s individualism) is as silent on gender-based distinctions as it is on race-based ones.  And arguably having to have an unwanted baby gets in the way of women being free and equal individuals with men.  If there’s a conflict between the right to life and the right to liberty, life, of course, trumps.  But no American now denies (and Thomas Jefferson himself affirmed) that enslaved blacks were endowed by nature with rights.  Americans disagree—both sides with forceful reasons—on whether unborn babies or fetuses are beings with rights.

I can give my own opinion that if we don’t know when life begins in this rights-bearing or, as some say, personal sense, then we should err on the side of life.  I could even remind you that ever-improving imaging technology seems to be helping out the pro-lifers by reminding everyone that a fetus looks like a baby early on in its development.  I could also remind you that, from the Court’s perspective, human life in the rights-bearing or personal sense doesn’t begin until birth because it’s not until then that the states have to protect the baby’s right to life.  But birth, if you think about it, is a pretty darn arbitrary standard, at least from the baby’s perspective.  Who the baby is—its biological or personal qualities and capabilities—doesn’t change with an abrupt change in his or her location.  Making that change definitive is exclusively about the perspective of the mother.  But I won’t go down this road.

Instead, I will remind you that most Americans don’t agree with what appear to be the most philosophically compelling views of when life in the sense of personhood begins.   Some pro-lifers, such as Princeton’s Robert George, say that embryology has shown us that an embryo is a person in full at or almost at the moment of its conception.  So there is, in this crucial, rights-relevant respect, no real difference between an   unborn baby and, say, a fourteen-year old.  If this is so, of course, then all abortion is murder like any other murder.  Princeton philosophy professor Peter Singer observes that being a person requires actually having, in the sense of being able to use right now, the qualities that differentiate human persons from other animals.  The key quality, of course, is the acquisition of language, which occurs around age 2.  And so Singer, quite consistently, says we can remain pro-choice on whether to keep a baby around until that age.  If that’s the case, some baby-killings that we now regard as murder aren’t really murder at all.  George and Singer love to debate each other as fundamental alternatives, and maybe they really are.  But we see that the majority of Americans aren’t persuaded by either extreme.

So we return to the most compelling part of the comparison between Dred Scott and Roe.  Both decisions were failed attempts to end constitutional controversies.  After Dred Scott, it was reasonable to work  to get the Court to reverse itself on the Constitution’s view of the status of the enslaved  blacks in order to allow legislative deliberation—and the spirit of compromise–to resume.  Later, after a hard-won change in opinion, it was possible to work to amend the Constitution to remove all doubt that the constitutional interpretation of Dred Scott was wrong and to secure, as the original Constitution really didn’t do, the equal citizenship of African Americans as free persons.

For now, the work of both pro-lifers and anyone with a genuinely constitutional view of judicial restraint is to get Roe reversed in order to allow space for popular and legislative deliberation and compromise.  At some point in the future, the pro-lifers might become so persuasive that the Constitution might be amended in a right-to-life direction. It also might be amended, if the pro-choice argument becomes more commonly compelling, to secure a woman’s fundamental right to an abortion.  Let’s free both sides in this controversy to work openly and proudly—and without fear of marginalization— to convince us all about a truth most Americans don’t yet see clearly regarding who we are.