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.