Saturday, February 01, 2003


Speaking of Roe

I just finished participating in the conference that I organized along with Yale Law Women to commemorate the thirtieth anniversary of Roe v. Wade. The sessions were packed and lively. The second two sessions were devoted to the question of "What Roe v. Wade Should Have Said." The panelists, all prominent American constitutional law professors, were asked how they would have written the opinon in Roe v. Wade (and the companion case of Doe v. Bolton) if they knew then what they know now. They were only permitted to cite sources available as of January 22nd, 1973, when Roe and Doe were originally decided.

One of the highlights of the session was a spirited exchange between the University of Minnesota's Michael Stokes Paulsen and my colleage Jed Rubenfeld on the status of the fetus-- or, as they put it, over whether an acorn is an oak tree. Mike Paulsen's strongly pro-life views, delivered to an audience that I presume was probably more pro-choice than pro-life, had a powerful effect.

My colleague Akhil Amar took a very interesting position-- he would strike the Texas law in Roe down because it was passed at a time when women didn't have the right to vote. What would happen if the Texas legislature then repassed an identical statute? Well, it would depend on whether the Texas Legislature had a representative number of women in it. Well, Akhil was asked, what if Texas had an initiative or referendum on the same law, so that women could vote on it? At that point, he suggested, he didn't know what he would decide. He would have to see what happened. And what about the Georgia statute in the companion case of Doe v. Bolton, which was passed in 1968, when women had the right to vote? The state courts should be allowed to clarify the meaning of the statute, Akhil explained.

Some members of the audience, I suspect, thought that this was taking the easy way out. What it suggests to me is that Akhil really doesn't believe in a substantive right to abortion, but rather is interested only in procedural guarantees of due process. But that leaves open the very interesting question whether the same logic applies to other statutes that effect women's rights-- i.e., they aren't necessarily unconstitutional as long as women have the right to vote.

Another very interesting feature of the discussion among the members of the mock Supreme Court was whether courts should push legislatures to be proactive in creating a world that respects women's work and the social and financial hardships of motherhood. Both my colleague Reva Siegel and Robin West of Georgetown pointed out that Congress had responsibilties to pass legislation enforcing sex equality norms that courts could not enforce on their own. Both are strongly pro-choice. Nevertheless, the nature of abortion regulation, they insisted, looks very different if there is a significant set of commitments by state legislatures or by the federal governrment to the support of mothers and to the welfare of children *after* they are born.

Anita Allen-Castellitto of Penn Law School argued that there should be no statutorily prescribed time limit on when women could get abortions; rather, legislatures should rely on doctors to act as a gatekeeper. Doctors won't perform very late abortions unless the woman's life is really at stake.

Jeffrey Rosen of George Washington Law School (and the New Republic) supports abortion rights as a policy matter, but argued that the courts should have stayed out of it. Both he and I considered the idea that Roe has been a political disaster. We both argued that it has strongly shaped contemporary American politics. Jeff thinks it has badly skewed the judicial appointments process. I think that it has been a boon to the Republican party, but not necessarily bad for the country. Mark Tushnet of Georgetown doubted that its political effects have been as great as Jeff and I believe. He argued that Ronald Reagan would have been elected in 1980 whether or not Roe v. Wade had been decided.

Mark's opinion for the conference was, literally, Justice Douglas's concurring opinion in Roe. His point was that the thinking of the Justices in 1973 was much more constrained by their times than we generally imagine, and that what they produced made much more sense than we usually give them credit for given who they were and the world in which they lived.


We should forgive our enemies, but not before they are hanged
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