Roe and Our Contested Rights Regime

Mississippi’s request that the Supreme Court overturn Roe v. Wade supplies a reminder that the problem with that case is not just a single bad precedent—it is the political frame of reference it reflects. On Roe’s understanding, the sine qua non of political life is protecting personal rights rather than facilitating the public good.

Conceptually, that might provide grounds for an interesting debate about the balance between autonomy and obligation, especially for citizens living in a community together. In practice, the rights regime Roe typifies tangles itself into knots that trip its advocates.

Take, for example, Paul Waldman of The Washington Post. Anticipating that the Court will yield just enough to Mississippi to maintain the shell of Roe while hollowing out its substance, Waldman warns:

We are at the front end of what may come to be known as the Great Rights Retraction. While liberal ideas are ascendant throughout American politics and culture, six conservative justices—five elevated by presidents who first took office despite losing the popular vote—are engineering a legal revolution intended to roll back and restrict rights held mostly by the less powerful.

It is tough to beat that one paragraph as a concise summation of the internal contradictions of rights-based politics.

If progressivism actually is marching onward “throughout” the country, there are at least two reasons Waldman should want Roe overturned. One is that it is superfluous: Legislatures, responding to this ascendant progressivism, would enact his priorities. The second is that elected officials Waldman does not like (conservatives) would be accountable to the voters for what he regards as their “extreme views.” Under Roe, the Court shields legislatures by letting them pass laws they know will not take effect.

The whole premise of the rights regime is that individuals need protection against majorities. If majorities agreed with them, they would not need the courts. Of course, Waldman’s real concern is not a retraction of rights generally. It is a retraction of rights he supports.

And here we arrive at the crux of the matter: In a community, these rights bump into each other. There is no consistent principle according to which “rights,” as a general abstraction, can be protected in the aggregate. In the case of abortion alone, there are several assertions of rights in play, including what Waldman views as the rights of women and what Mississippi views as the rights of the unborn.

The problem is that rights are not abstractions. They are rights to act, and actions almost invariably affect other people. There is only one conceivable exception, and that is religious liberty, which Locke taught applied to a purely internal domain. But wait: In that case, Waldman is worried about a Great Rights Expansion. After the Supreme Court ruled in Masterpiece Cakeshop v. Colorado that the state could not discriminate against a religious baker, Waldman ominously prophesied a nascent regime of “special rights” for “conservative Christians.” But the right not to be compelled to violate one’s religion, which was at stake in Masterpiece Cakeshop, is not a special right for Christians, conservative or not.

Lost in all this is what the Founders considered the right par excellence: self-government. Waldman nods at popular government in complaining that several justices were appointed by presidents who lost the popular vote. The thread gets knottier, though. The six conservative justices were appointed by presidents who won the popular vote in Mississippi. Waldman’s, then, is an instrumentalist politics: Popular sovereignty is useful for good outcomes, and the Courts should protect good rights.

Normally, our differences are worked out through compromise on national issues and variety on local ones. But rights-based politics freezes or forbids these processes—at least they do on issues that concern Waldman.

Waldman surely knows liberal ideas are decidedly not ascendant in Mississippi, at least by the only standard a republic can use to measure popular views: the election of representatives. Yet for someone who does not think people with whom he disagrees should be able to self-govern, Waldman is strangely committed to voting rights. Waldman expressed concern for these in the same column in which he warned about the precarious state of Roe.

In that instance, Waldman is concerned about the Supreme Court gutting the Voting Rights Act. Given the 15th Amendment’s broad writ for Congress, he has a stronger case for criticizing the Court on that issue than he does on abortion. But the right to vote is about participating in processes of majority rule. He wants to neuter that right for the people of Mississippi by having a national Court superintend their decisions—provided, again, that Waldman disagrees with those decisions. But why would he need the Court, given the ascendance of liberal ideas “throughout” America?

Here, too, that is not Waldman’s real meaning: He means liberal ideas are ascendant in places where people are sufficiently enlightened, which is the mirror image of Sarah Palin’s claim that the “real America” was conservative. Waldman simply flips the same idea, locating the real America in progressive enclaves. Flyover country, by contrast, is populated by rubes who elevate their moral values over what Waldman perceives to be their economic interest. (Reminder: This is noble when wealthy progressives endorse higher taxes on moral grounds and then hire lawyers to avoid paying them. When people in Mississippi prioritize their views on the morality of abortion, they are dumb.)

The fact that conservatives and progressives increasingly live in different places highlights the fundamental issue that Waldman ignores: We live in a diverse society in which people disagree with each other. Normally, those differences are worked out through compromise on national issues and variety on local ones. But rights-based politics freezes or forbids these processes—at least they do on issues that concern Waldman.

Waldman is also concerned about the complex and indirect ways in which legislatures are impeding abortion, such as the “truly horrifying” Texas law that allows—and incentivizes—any private citizen to sue for damages in order to prevent an abortion. Some of these do have the feel of Dr. Evil lowering Austin Powers into a shark tank: “I’m going to put him in an easily escapable situation involving an overly elaborate and exotic death.”

But these intricacies are only necessary because the Supreme Court will not allow voters in pro-life states to legislate their values. They are not proof that Texans are horrifying. They are proof that judges are not very good at resolving social controversies. In the absence of Roe, abortion policy almost certainly would have settled into an accommodation over the last half-century. Instead, both sides have run further to the edges of their positions in the serene confidence that those positions will never see the light of day.

On Waldman’s view, this accommodation would have favored a more permissive abortion regime. We know this because “liberal ideas are ascendant throughout American politics and culture.” Why, then, are advocates of Roe so nervous about it being overturned? They should be overjoyed. That they are not is proof not just that public opinion on abortion is more nuanced than they think. It also shows that the situational politics of rights they espouse cannot, on any consistent principle, be sustained. A Great, and Consistent, Rights Retraction might be just the thing to facilitate a politics of the common good.