The Political Future of Abortion Rights

JB

Today marks the 34th anniversary of the decision in Roe v. Wade.

For many years many people-- including even some supporters of abortion rights-- have assumed that Roe was a constitutionally illegitimate decision that had no basis in the Constitution's text or the principles of its framers. Recently I have argued that the conventional wisdom is incorrect, and that the right to abortion, if not the actual logic of Roe itself, is faithful to the original meaning of the Fourteenth Amendment and the principles that underlie it. You can read the full argument here.

The fact that the abortion right can be squared with the Constitution's original meaning does not tell us, however, whether the courts will retain it or overrule it. In this essay I want to consider that latter question: Will the constitutional right to abortion survive politically and legally in the long run?

As Mark Graber reminds us, constitutional controversies are usually settled when one side or the other gives up. As of now, it does not look as if one side or the other is going to give up on the constitutional right to abortion. That does not mean, however, that Roe or Casey will soon be overruled. It means rather than the abortion right will be continually reshaped in the next several decades.

For example, most people don't realize that Roe was already partially overruled in the case that purported to affirm it, the 1992 decision in Casey v. Planned Parenthood of Southeastern Pennsylvania. Casey jettisoned Roe's trimester system and adopted an "undue burden" test for regulations on abortion prior to viability.

The reason why Casey overruled Roe partially was fairly simple. The Republicans made five straight Supreme Court appointments after the Republican Party became the pro-life party in 1980. What is surprising is not that Roe was cut back, but that it survived at all. The most likely reason that Roe survived in limited form is that political factors prevented the appointment of enough strongly pro-life judges and because, after the failure of the Bork nomination, it became clear that it was not in the long-term political interests of the Republican Party to overrule Roe completely instead of chipping away at it gradually. Hence the Republican majority on the Supreme Court eventually produced a watered down version of the abortion right in Casey.

In fact, Casey gave stability to what was left of Roe v. Wade and moved constitutional doctrine (in practice) closer to the vector sum of political forces in the U.S. It allowed increased regulation of abortion-- particularly for the poor-- while preserving the effective right to abortion for affluent and middle class women.

This may not be the most just compromise from either a pro-life or a pro-choice standpoint-- in fact it may be morally obtuse for both sides, but that is true of many compromises. Evidence of Casey's success in moving the doctrine toward the political center is that most of abortion politics in the decade after Casey has nibbled around the edges of the key right-- it has concerned things like parental notification and partial-birth abortion, and largely symbolic gestures like the Unborn Victims of Violence Act, passed in 2004. Pro-life forces have been unable to succeed in wiping out the basic abortion right for affluent and middle class women. However, they have been quite successful in making it very difficult for poor women and women in rural areas to obtain abortions, and they have been able to effectively drive abortion providers out of a number of areas of the United States. But both of these results were foreseable if not inevitable consequences of the doctrinal structure created in Casey.

Nevertheless, the single most important factor in reducing the number of abortions in the United States has been increased use of and education about contraception, which some parts of the pro-life movement happily support. Other parts of the pro-life movement regard contraception (and education about contraception) as less desirable than promoting sexual abstinence programs, and still other parts of the pro-life movement actively oppose contraception as being, like abortion itself, immoral.

Given the relationship between Supreme Court jurisprudence and national political forces, it is very likely that the federal courts will not overturn Roe v. Wade any time soon, but they will continue to chip away at it. That is true even if the courts continue to be dominated by conservatives appointed by Republican Administrations. Generally speaking, the Supreme Court tends to stay roughly in sync with the vector sum of political forces in the country; since the Republicans have lost Congress recently, we can expect that it is somewhat less likely than before that Roe will be overturned; but this says nothing about marginal issues like the constitutionality of the 2003 Partial Birth Abortion act. If the Democrats regain the White House in 2008 and continue to control both Houses of Congress, it is very unlikely that Roe will be overturned in the near future.

One policy that might go some ways toward settling the political dispute over abortion would be the passage of a federal Freedom of Choice Act that statutorily codified basic features of Casey. Such an act, of course, would not pass until Democrats control both the Presidency and Congress; the last time this happened, in the Clinton Administration, inter-party squabbling prevented its passage.

There are no guarantees, of course, but Congressional ratification of Roe/Casey might bring a somewhat larger group of Americans to conclude that abortion was an established right and not a mere imposition by federal judges, that abortion rights were here to stay and that people should stop trying to get rid of them. No doubt many people would continue to have strong moral objections to abortion even if Congress passed a Freedom of Choice Act. But the question is not whether such a settlement would make abortion moral for abortion opponents (it would not). The question is whether the passage of a Freedom of Choice Act ratifying Roe/Casey would lead a sizeable number of abortion opponents to conclude that the best way to fight this particular form of immorality was not through seeking criminalization of abortion, but rather through other methods, like moral suasion, promoting adoption, pushing for social policies that eased the financial hardships of poor women who would otherwise choose abortion, and, for some abortion opponents, promoting contraception and family planning.

This possible scenario is not entirely fanciful. Many people who once sought to criminalize same-sex sodomy now view homosexuality as immoral but not an appropriate subject for state criminalization. It is possible that the same thing may someday happen to abortion.

Obviously, the opposite result may also occur: someday most Americans may come to believe that abortion is immoral and that it should be criminalized everywhere. Or Roe may be overturned and we will have abortion legal in some states but not in others. I think these two scenarios are a bit less likely, but I have been wrong before about so many things that neither would entirely surprise me. For the foreseeable, future, however, I think the country will probably stick with the Casey compromise, not because it is particularly good policy from the standpoint of either the pro-life or pro-choice side, but because it protects abortion rights for affluent and middle class women, who, not entirely coincidentally, are also the women who are most likely to vote.
Posted 1:01 AM by JB [link]