Balkinization: Should Democrats Give Up on Roe?

Should Democrats Give Up on Roe?

This past week over at Legal Affairs my friend Sandy Levinson and I debated whether Democrats should give up on Roe v. Wade. You can find the debate here.

Among other things, I argued that far from giving up on Roe, Democrats should push for ratification of Roe in the political process; we tend to forget that Brown v. Board of Education was controversial in its first decade until it was ratified by Congress in Title VI of the 1964 Civil Rights Act. Even though a Freedom of Choice Act cannot be passed in the current political climate, Democrats should run on such legislation, and they should repeatedly insist that Republicans state whether or not they oppose it. If Republicans say that they oppose it the bill, this will signal that they seek to overturn Roe, which will undermine their coalition, for reasons Sandy and I describe more fully in our debate. If they say that such a bill is unnecessary, then they are implicitly accepting that Roe should remain the law of the land. And if they join Democrats in supporting it, then they are ratifying Roe.

I also argued that Roe will become quite important to the constitutional debates over the reproductive technologies of the future, and in those debates the principles of Roe, properly understood, will counsel judicial restraint.

Posted 11:28 PM by JB [link]

Comments:

They *really* should have found people with more divergent opinions for that debate, don't you think?

In any case, yes, Democrats SHOULD seek to legitimize Roe through the political process. First, because it's the right thing to do; Constitutional change via judicial fiat is simply wrong. We've got Article V, you don't like the Constitution, you should use it.

And, because it would largely settle the arguments, one way or the other. A LOT of the opposition to Roe is reenforced by the simple fact that it IS an illegitmate judical fiat, not legitmate law. If Democrats succeed in making Roe into legitimate law via the amendment process, nobody can claim that it isn't what the Constitution really means.

The flip side of that, of course, is if you fail to get your change, Roe MUST fall. None of this "heads I win, tails you lose" business, where you just fall back on the courts if politics doesn't give you what you want. To go the political route is to admit that the judicial route is illegitimate.

Finally, yes, it has to be by Article V amendment, not simple federal law. The only way that federal law is applicable is if you assume abortion IS a civil right, exactly what's in contention.

# posted by

Brett : 12:48 PM

I agree that moderate, nuanced choice, is the mainstream position in this country, as it was on it's way to becoming when the courts decided to be heavy handed about things.

But there's nothing moderate about the "choice" regime imposed by the courts through Roe and subsequent rulings. That is, in fact, the source of the pro-life movement's strength, that anyone who thinks abortion should be subject to any level of regulation AT ALL is driven into their arms by the extremism of the court imposed status quo, which amounts to elective abortion on demand right up until the cord is cut.

If politics were a continuous, frictionless process, removal of those judicial impositions would probably result in a nuanced system of regulation similar to what Roe suggested, and Doe snatched away a few hours later. As things stand, however, the pro-life movement might make MAJOR legal victories in the wake of Roe being overturned, before it's marginal supporters dropped off. And then those victories would be very hard to undo.

My advice to Democrats, then, is that you should attempt to figure out what sort of choice regime would satisfy the largest number of voters, NOT the most extreme elements of NOW, and agree to go there BEFORE Roe falls. Doing so would strip the pro-life movement of most of it's strength prior to the post-Roe struggle, and result in a final equilibrium more to your liking than the current obsessive opposition to ALL abortion regulation is liable to leave you with.

# posted by

Brett : 7:04 AM

I didn't suggest that pro-choicers resort to Article V because I thought it would succeed. I suggested it because they ought to fail, if they can't get an amendment ratified.

And there's little doubt in my mind that the Democratic party is going to end up with a worse end result by hanging tough, than by moving to a more defensible position. You may be right that falling back in that fashion is politically impossible, in which case they're simply screwed.

# posted by

Brett : 7:15 AM

On a different note...

Balkin argues in the debate that a better foundation for the right to abortion is equality for women in society:

"Restrictions on abortion force women to become mothers against their will, imposing life-altering obligations on them in ways that our society has never demanded of men.... [A]bortion laws treat women not as murders [sic -- probably murderers], but as mothers, as people who exist to rear children, often in situations of economic and social dependency. And prior to the actual raising of children, prohibitions on abortion require women, unlike men, to surrender their bodies to the state for the purpose of bearing children, sometimes at risk to their life and health."

In short, he thinks women should not be forced to submit to their biology but should be allowed to abort pregnancies so that they have no greater biological burden than men. This ignores two things: First, men and women are biologically different, and we shouldn't try to justify abortion rights on the notion that men and women must bear a biologically identical burden to be equal. A better way to legislate on this matter is to force the men who impregnate to be responsible to participate in the care for their offspring and partner(s), thus spreading some of the burden of pregnancy to men. IOW, the law can treat women as mothers as long as it also treats men as fathers. (Admittedly, this is difficult to implement in practice, but at least it is not an affront to common sense.)

Second, Balkin's argument ignores the emotional, social (cf. http://www.tnr.com/doc.mhtml?i=20051128&s=franke-ruta112805), and medical burdens of an abortion, which women alone still carry and which, ipso facto, mean the equality scheme has failed to achieve its goal.

# posted by

M. Flexibilis : 9:05 AM