by Clive Crook
If the Supreme Court overturns Roe v. Wade, as the recently leaked draft opinion suggests, arguments over how to regulate abortion will move from the courts to the legislatures, in Washington and 50 state capitals. Many critics of the decision, and even some of its defenders — I find myself in both camps — say this is where the debate belongs.
I wish I could agree. But I am not optimistic that America’s legislatures, as they actually exist, will guide the country to a better outcome.
The case for a legislative solution stems from the idea that it was a mistake for the court to arrogate such an intensely political issue to itself. When basic values are contested, they should be settled democratically, not by judicial fiat. Overturning Roe will therefore force legislatures to do their job, promoting discussion and compromise, instead of freezing a bitter, unresolved conflict in place for half a century.
The problems with this theory begin with the fact that abortion implicates fundamental rights and liberties — those of women and (according to your moral convictions) the unborn. Understandings of fundamental rights and liberties should indeed be enshrined in constitutions: That’s what constitutions are for. But they should be written and amended through a representative process, not by judges.
Ideally, that process would give rise to a sufficiently strong consensus about rights and liberties, which would then shape the constitution, which judges would then apply to constrain the day-to-day actions of legislative majorities.
Ireland offers an example of how such a process can work. In 2018, the citizens of a rapidly secularizing country voted by referendum to change the constitution so that it no longer said a fetus has a right to life. Legislation to regulate abortions was henceforth allowed, and parliament passed a law permitting them to be carried out in the first 12 weeks of pregnancy, or later if the health of the mother was at serious risk. Voters supported the amendment by a two-to-one margin.
The new law — preserving, by the way, restrictions that most U.S. abortion-rights campaigners would regard as intolerable — also commanded wide support. Controversy on the issue hasn’t ended, but it’s milder than in the U.S., and ordinary semi-functional politics resumed.
Is that the model? Such resolution is unimaginable in the U.S. — partly because amending the Constitution is impossibly difficult, but even more because the country is more closely and more furiously divided on the underlying moral issue.
Consider one likely scenario if (and when?) Roe is overturned. The most liberal states would provide abortion pretty much on demand. The conservative states would impose outright bans. Those in middle would strike a balance.
Whatever you think of that prospect, it’s no formula for constitutional stability or a more civil style of politics. Abortion policy, remember, implicates fundamental rights and liberties — rights and liberties that are, or should be, encoded in the Constitution. Remember too that Americans like nothing so much as litigation, which will require the involvement of the courts.
So every new effort to regulate or deregulate abortion will face legal challenge. Either this Supreme Court or one of its successors will be pressed to intervene. Overturning Roe v. Wade settles no constitutional aspect of the controversy. In fact, it militates against constitutional stability, both by further calling the court’s political independence into question and by repudiating the presumption of deference to precedent.
The outlook for calmer politics is no more promising. The controversy over abortion will most likely intensify. Positions on abortion and every other tribally divisive issue will harden. As the battle between Right and Wrong rages on every front, an increasingly polarized political system will indulge extremism, reject moderation on principle and leave the larger part of an exhausted electorate disenfranchised. No justice, no peace, as they say.
Abortion has crippled U.S. politics not because the Supreme Court presumed to hoist the issue away from legislators, but because the American system of government is in thrall to true believers who see any kind of compromise as defeat. A polity committed to this principle cannot settle, as Ireland and most other countries in Europe have, for muddled outcomes that acknowledge moral complexity.
So I’m afraid I can’t quite buy the notion that America’s politicians will do better than the judiciary on this issue. Right now I see no sign that they are interested in anything but deepening America’s divisions, on abortion and everything else, for partisan gain.