an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Much of the conference commentary thus far has focused, for evident reasons, on the Supreme Court. Yet, it also is the case that the world of abortion is subterranean, in at least three senses I would emphasize. All three pose a very real challenge to the future of abortion rights. They also call into question the strategy of directing so much attention to the Supreme Court’s posture on abortion rights.
To set the stage, I want to signal agreement with at least two things that have been said so far. First, Michael Klarman suggested that Roe occasioned a backlash that empowered the pro-life movement. He goes a step further to make the claim that Supreme Court cases often have this effect. Second, Neal Devins argued that by the 1992 decision in Casey v. Planned Parenthood, the situation had stabilized. Wide majorities of the public supported retaining the right to choose, as well as the many restrictions Casey permitted.
Klarman and Devins are right to note this cycle of decision-opposition-general equilibrium. I’ve got a book coming out next year that explains how the nation has arrived at the perhaps odd pass that (at least in the post-1937 world) Supreme Court decisions tend to come into line with the considered judgment of the American people. There is some tension between the claims of Klarman and Devins that requires attention, however, for Klarman suggests that no lasting equilibrium on abortion may be possible, while Devins maintains we already have achieved it: it is all over but the shouting, he claims. Which is it?
I’d like to identify three senses in which abortion and abortion politics are “subterranean” in ways that call into question both the lasting equilibrium, and the future of abortion rights generally.
First, the judicial politics over abortion rights are not about abortion rights any longer, they are about American politics more generally. The Court is being played for political profit. There was a time when things were as Klarman suggests: the Court would decide a case, and as often as not it would energize opponents of the decision, who would organize and become a force for constitutional change. While this pattern no doubt continues to exist, something more subtle and insidious frequently occurs today, which is that opposition to Supreme Court is directed not only at achieving constitutional change on that particular issue, but is aimed at mobilizing one’s political base more generally. Early traces of this phenomenon were evident, ironically, in the response to the Casey decision itself, with both sides claiming defeat. Ted Koppel spelled out the logic on the news program Nightline: the “true believers on both sides,” he said, would claim dissatisfaction in order to “reclaim the issue from the court system” so that they could “fight the issue out in the political arenas.” But now this mobilization is not even about abortion rights anymore; in the strange “wedge and base” politics of the late twentieth and early twenty-first centuries, arousing anger over abortion can translate into general votes for presidential and congressional races. This remains true even if, as Neal Devins claims, most folks have made up their minds on abortion. I’ll explain more at the conference, but this undercurrent to judicial politics over abortion makes for it less likely an enduring equilibrium. Not because, as Klarman suggests, there may be no resting place on abortion itself, but because it is simply too valuable in the political arena to go on fighting. Most Americans are tired of the issue and do know what they think, but the battle continues.
Second, I want to suggest briefly that public opinion on the issue is not as stable as Devins suggests, and that the instabilities are likely to be exploited contra those who favor abortion rights. Underneath the seeming relative stability of opinion polls runs a slow trickle of defection on the issues. Casey was a high point for support for abortion, and – ironically – for support on various restrictions on abortion. Since then, both have dropped. Abortion rights still retain a strong majority support. But no one watching the political arena can fail to observe that folks on the left are far more leery of stepping up to defend the practice than those on the right are to attack it. In both politics and law, the combat about abortion has become trench warfare, and attrition seems to be most serious from the side of abortion rights. If the new Democratic Platform on the issue shows anything, it is an increased desire to reach hedging or accommodationist positions. Again, this suggests that despite surface stability, there may be movement below that ultimately will threaten abortion rights.
Finally, focusing on Supreme Court politics over abortion might just miss everything important there is to say on the subject if one’s concern is for women who desire safe and available abortion services. After Casey, as Neal Devins notes, many states did tighten up their abortion laws. Much of this was within the bounds of what Casey permitted, although Robert Post’s piece about the Rounds decision surely makes the case that judges appointed by Republican administrations are prepared to push the envelope against abortion as much as possible. The net impact of these restrictions – as well as many other actions in the public and private arenas that are decreasing the availability of abortion services, especially to women in more remote locations – means that under the seemingly stable world post-Casey, those actually requiring and providing abortion services are taking it on the chin. (Indeed, it is worthy of note that pro-choice advocates forced Casey on the Court at what seemed a propitious political moment, but in retrospect the Casey plurality plainly had the better of that face off. While retaining the illusion of support for abortion rights, thereby taking the heat off the Court and causing many in the pro-choice electorate to relax, the real impact of Casey was to lessen access to abortions and decrease abortion rights.)
It is difficult to know precisely what to make of all this, as well as what the appropriate response might be from those concerned for the availability of abortion services. “Choice” may well be a sane place to return, but in a way that highlights the hypocrisy of the right. Surely it is the case, all can agree, that fewer abortions is a better thing – at least if that is the result of more informed decisions about birth control, or a greater availability of well-funded abortion alternatives. The abortion rate is dropping slightly, but I’ve seen no clear data on why: whether it is a matter of informed and true choice, or rather the lack of readily available abortion services. The true accommodationist position would seem to be one that recognizes the right to choose to have an abortion and removes senseless fetters from it; concedes that fewer abortions are better than more abortions; and insists that the states act to ensure that women do face real choices, from birth control through the decision of whether to carry to term and beyond. I’ve got no data on this either (I’ve been looking!), but my suspicion is that there is an inverse correlation between states with hostile abortion laws, and those state’s support for birth control and sex education, pre- and post-natal care and welfare services for those who choose to have a child. It is difficult to label this position sane. Posted
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