April 21, 2005

Let's roll back 30 years and start over.

David Brooks on Roe v. Wade: Things would have worked out better for liberals if the Supreme Court had not made abortion into a right but had allowed the issue to work its way out in the democratic arena.
Liberals lost touch with working-class Americans because they never had to have a conversation about values with those voters; they could just rely on the courts to impose their views. The parties polarized as they each became dominated by absolutist activists.
The only way out of our nasty politics, he thinks, is to overrule Roe v. Wade:
[T]he entire country is trapped. Harry Blackmun and his colleagues suppressed that democratic abortion debate the nation needs to have. The poisons have been building ever since. You can complain about the incivility of politics, but you can't stop the escalation of conflict in the middle. You have to kill it at the root. Unless Roe v. Wade is overturned, politics will never get better.
But it's not possible to redo the last 30 years. We already are where we are, and those who think abortion should be legal have spent these decades -- or their whole lives -- thinking abortion was not only legal but a constitutional right. To take that right away now would not give us a chance to have the democratic debate we never had. It would be a wholly different experience of taking away a right, after the bitter politics had built to the level where the side opposed to the right has finally gotten its way, after we have already become polarized. What makes you think that won't be insanely bitter?

True, it will be democratic -- though the pro-abortion-rights side won't give up on fighting in the courts -- but it won't be the same democratic debate we might have had back in the early 1970s. Ironically, if, after all these years, social conservatives finally gain a majority on the Supreme Court that is willing to overturn the precedent, it will activate political liberals and libertarians. And one thing they will want is their majority back on the Supreme Court.

I think David Brooks, like most of those who push for radical change, is indulging himself, painting a rosy picture of life post-change.

UPDATE: Ramesh Ponnuru at The Corner tries to rehabilitate Brooks after my attack. Ponnuru assumes the debate would return to the states, which is a subject I took up in the comments. I wrote:
[T]he Supreme Court can't ensure that if it overruled Roe v. Wade, the matter would be determined at the state level. With a new political field opened up, Congress would want to do things too. Unless the Court also did something awfully strong to limit the Commerce Power, Congress would have the power to regulate abortion, including making it a federal crime. I can't imagine that it wouldn't try!

ANOTHER UPDATE: Ponnuru does acknowledge the potential for federal action here:
[I]f Roe ended, pro-choice activation would, I think, not likely be matched by pro-life quiescence. There would be too many state (and federal) legislative battles to fight, and nobody on the pro-life side would think their work done.

He goes on to say:
In a lot of places, you'd have state laws that restricted abortion a lot more than it is restricted today, but not as much as pro-lifers (like me) would like. So hard-core partisans on both sides would be unhappy. ... Public policy on abortion would be closer to median-voter sentiment. And the sense of the law's illegitimacy would be much harder for the losing side of any battle to maintain (as Brooks points out).
I do think this prediction of moderation, with the hardcore ends of the spectrum unhappy envisions decentralized politics rather than a sudden grab for everything in Congress in a very bitter, unsettling fight. Why wouldn't the groups on both sides converge on Congress and demand everything they want? How could Congress ignore that? If the Terri Schiavo case is any indication, Congress will plunge forward and take over this area.


Gerry said...

I agree with you that Brooks is understating how tumultuous it would be.

However, I am going to quibble with you over your statement about how it would cause liberals and liberarians to want to reclaim a majority on the court. Liberals already want to reclaim a majority, so that is no change.

As for libertarians, they are not unanimous on the matter. While the big-L Libertarian party may be supportive of abortion as a right, small-l libertarians come down both ways. There are many small-l libertarians who consider an unborn baby to be a person, and as such look at abortion as a violation of the rights of that person-- indeed, they see one of the few legitimate functions of government being to prevent harm to persons.

Nick said...

Very true Gerry... I'm one of those small-l libertarians. Being a libertarian doesn't immediately make you pro-choice... Just like a lot of divisive issues, people fall on both sides of the fence. Just like there were libertarians who fell on both sides of the Iraq war debate.

leeontheroad said...

Surgical abortion-- legal OR illegal-- is always already a moral or ethical question, because it immediately impacts two lives, or one life and the potential for another. (We can quibble about the terminology endlessly in an effort to define what is human and what is a biological life form.)

Comparing O'Connor's and Blackmum's opinions in this area make clear that the basis of the debate about criminalizing (and for whom) surgical debate has ALREADY changed over time, which Brooks doesn't countenance. Blackmum's original consideration, according to his papers, says Linda Greenhouse, was whether doctors decisions should be subject to criminalization. O'Connor's recent majority opinion on the matter considers whether criminalization places unqual burdens on women.

Interestingly, Land, the President of the SBC, has suggested that it shouldn't be women seeking abortions who should be jailed, were abortion again to be illegal, but rather, doctors who perform abortions-- a fair position when one believes the procedure is ipso facto immoral. This position also allows one to deny any connection between individual women's (decision-making or medical privacy) rights and opposition to abortion. But, thereby, it also has the major problem of overlooking women's agency in seeking medical services.

The Nanny State tells us what it thinks is best for us, and we rightly argue when the state (legislative or judicial) overreaches.

All those who see abortion as immoral of course, as the saying goes, do not have to have one (obviously, especialy if they, e.g., men, cannot be made pregnant.)

I still have difficulty with the idea that those individuals should dictate that anyone else can't make a different decision-- even as I have become convinced for myself (for moral reasons, in fact) that I would not seek to abort a pregnancy in most cases.

Jane Bellwether/Tamara R Bower said...

I agree that a great deal of political haymaking would be part of the reaction to a Roe v Wade repeal, though it's hard to see a repeal on the horizon. But if Roe v Wade created a constitutional right, little is said about that right if Roe disappears. If the constitution is silent, the debate becomes more meaningful because the conclusion isn't foregone.

The fact that some people have become or have always felt entitled to abortion as a right shouldn't be relevant in the eyes of the court; they become truly relevant by having the chance to weigh in when this becomes a real states rights issue. You are right that it won't be the same debate we would have had in the 1970s, when leading pro-choice politicians such as Ted Kennedy, Jesse Jackson and Al Gore were all horrified at what the court had done.

Adam said...

Here's what I don't get -- other than the fact that one is universally popular *now* and the other isn't, why point to Roe and not Brown? Both were activist decisions impinging on state's rights, both inspired massive local resistance (Brown, even more), yet Brooks would rather go after Blackmun . . .

Will said...

The difference, I take it, is that Brooks (like most conservative legal scholars) thinks that Brown was right on the merits.

And, perhaps, that 30 years after Brown the question of whether states could require segregated public schools as a matter of law was pretty much settled.

Nick said...

Actually Ann... I have a nother question...

If you agree that the overal premise of the Times article is correct, in so much as that Roe did cause this polarization because it took away from the democratic process...

And you are saying that reversing Roe won't create put the discussion back in the democractic sphere thus reversing at least some of the current polarization....

Are you then saying that we're completely screwed here? There's absolutely nothing to be done? I understand we can't go back 30 years... but I also don't like the idea that there are no solutions. Maybe it's the engineer in me... but I always like to think there's an out. Otherwise it's a pretty bleak picture you paint.

Bob_Minn said...

Ann's analysis on losing a perceived right is very similar to the logic used back in my political days (disclosure: Republican, before the now almost total takeover of the state party by the social conservatives). Republicans knew that if we pushed through any tax reduction or deduction (such as for educational expenses), no matter how small, then it would be extremely difficult to take it away under any circumstances because we and taxpayers could scream, "no tax increases!". Case in point: deductibility of school expenses for lower-income citizens, including tutoring, books, a computer, internet access fees and yes, even private school tuition. Though despised by the public education lobby, it is now (hopefully) untouchable. Expansion may be possible, but not a great reduction. People will scream bloody murder that a "right" is being taken away. The same will be heard when the sunset provisions in Bush's tax decreases are due for renewal. We can never go home again, as Thomas Wolfe wrote.

Ann Althouse said...

Nick: you could put the question back in the political sphere, but it won't be the same politics we would have had without Roe v. Wade. If the Court had never acted, that debate would have proceeded without reference to the courts and with people who wanted something new working to convince others to accept it. If the political debate were to take place now, it will be full of outrage at the court (from one side) and triumph that the project of taking over the court succeeded (from the other). There will be shock at the loss of a right from many people, who will also be suddenly aghast at all the progress made by social conservatives. This will be a very different debate. You're just not thinking clearly if you imagine it won't be bitter and polarized. I think this is one of the reasons the Court has declined to overrule Roe.

twwren said...


The "radical change" occurred forty years ago when, after 170 years, the Supreme Court found the enumeration of a penumbral right of privacy.

lindsey said...

"Here's what I don't get -- other than the fact that one is universally popular *now* and the other isn't, why point to Roe and not Brown? Both were activist decisions impinging on state's rights, both inspired massive local resistance (Brown, even more), yet Brooks would rather go after Blackmun . . ."

No one questions the morality of desegregation because it was manifestly immoral. Abortion is a whole other ball of wax. It involves the taking of a life. This is why the issue is so contentious. This should be obvious. There's more than states' rights issues involved in this.

Given the recent revelations of Blackmun essentially not doing his job while justice, someone should go after him.

Ann, what if the Court washed its hands of the abortion issue by arguing for federalism and putting the issue back to the states? Would this cause the catastrophe you worry about?

Ann Althouse said...

Twren: Even if it was radical to do what it did when it found the right of privacy, undoing it now would also be radical. You can't go back to the past and start over. That's my point.

Lindsey: the Supreme Court can't ensure that if it overruled Roe v. Wade, the matter would be determined at the state level. With a new political field opened up, Congress would want to do things too. Unless the Court also did something awfully strong to limit the Commerce Power, Congress would have the power to regulate abortion, including making it a federal crime. I can't imagine that it wouldn't try!

brennan said...

I think Ann is right in her response to Nick.

I think Roe is a wart on the legal anatomy. However, Roe has emboldened a number of politicians to frame poliitical debates solely around this one SCOTUS opinion. You cannot role back time and remove Roe from the present without also spoiling the political prominence throughout the nation of politicians that have crafted policy around the holes in Roe.

Subtract Roe and the policy debate would instantly shift from limiting abortion to outlawing abortion. Although, this would be limited to certain States the laws would be passed rather quickly with minimal debate on the grounds that innocent life is being taken via abortion. Contrast that to an executive order that many a governor would issue outlawing abortion as soon as the SCOUTS opinion overturning Roe is released.

Timultuous it would be, sometimes a model has to fail in order to craft a better model.

Brooks is absolutely right about the use of the filibuster on judicial nominees. Liberal groups such as MoveOn, Alliance for Justice, PFAW and "reprodcutive rights" organizations, were launched and have prospered as a result of the last 30 years of judicial decree. You're rebuilding the dam they destroyed 30 years ago if you alter Roe.

lindsey said...

"With a new political field opened up, Congress would want to do things too."

Unless the SC specifically states that, like I said, this is a state matter and the federal government should butt out.

Ann Althouse said...

Lindsey: The Court doesn't just give orders. It would have to be interpreting some law. What law would keep Congress out of the matter?

JB said...

One Hundred Years ago, Little Yosemite was placed under millions of acre feet of water by construction of the Hetch-Hetchy Dam. Certainly, if one advocated it, removing the Hetch-Hetchy Dam after draining little Yosemite Valley would not restore Little Yosemite to it's pristine state prior to the dam. However, it would probably given time, begin to return to the beautiful pristine quality it had before, over time. However, leaving the dam in place, guarantees that Little Yosemite will stay underwater.

The same is true of Roe, yes if Roe is overturned, there would be bitterness, but it would allow healing to begin, and yes some states would outlaw abortion and some states wouldn't touch it. Ultimately, if there is to be any sort of healing on this issue, it has to come through the overturning of Roe.

About the loss of the right, I think abortion has been so contentious and viewed so harshly, that less than a majority seem to truly view it as this perfected right that could never be taken away, and in fact that it's still an issue after 30 years suggests that many feel that it still is no right.

That all being said, if damming Little Yosemite was a bad thing to do, and destroyed the beauty of it, that it is underwater now and we can't go back completely to the way it was, should not stop us from seeking to repair the damage that was done.

The injury done by Roe will at least have to stop bleeding before we can expect it to heal.

Steve said...

I think it is a mistake to assume that, had Roe come out the other way, liberals would have given up on the courts altogether. Why wouldn't they have said, again assuming Roe came out the other way, "We had 4 dissenting Justices in favor of declaring abortion a fundamental right! All we need is to get one more appointed!"

Even if cert had been denied in Roe, that wouldn't permanently rule out the idea that the Court would reach the issue at a later date. And it would have left the door open to litigating the issue in each and every circuit.

I can't imagine what the Court could have done to send a permanent message that this issue was not in play as far as the courts are concerned. I think the whole argument is based on a fallacy.

Adam said...

lindsey said, re my comparison of Brown to Roe:
No one questions the morality of desegregation because it was manifestly immoral. Abortion is a whole other ball of wax. It involves the taking of a life. This is why the issue is so contentious. This should be obvious. There's more than states' rights issues involved in this.

"No one" questioned it other than the fact that the Brown decision led to a seismic shift in American politics, from a Solid South where Republicans won not one state in 1948 (despite Dewey-Warren winning 45% of the national vote) to a Solid South where Democrats were shut out in 2000 and 2004. I believe the aftershocks of Brown were pretty damn contentious from 1954 to the 1960s to the busing fights of the 1970s and beyond.

My point, simply, is this: the kind of judicial activism Brooks decries happens in "good" cases too, and leads to similar anti-judicial sentiment. The "Impeach Earl Warren" was pretty significant, and for Brooks to only blame Roe is to make an historically false argument.

Anonymous said...

Those who are inclined to be bitter might console themselves with the thought that their reversal of fortune is all part of the game when you've got an evolving constitution; if its meaning can change to make something that wasn't a right at time Y-32 into a right at Y, it can just as well change again to turn that something back into a non-right at Y+32.

But what most of these folks actually believe, I suspect, is that the Constitution was a living document only up to the moment when the Burger Court killed and embalmed it. They'll be bitter, all right.

Nick said...

I understand that you're saying it would be bitter and decisive if it were over turned. But if we say that the current situation is a problem, and that Brook's solution wouldn't work... than what's yours? Or are you saying that there is no solution and we're just screwed? I guess that was my real question.

Ann Althouse said...

Nick: I don't think there will ever be a satisfying solution to the abortion controversy. The beliefs are too deeply divergent. Letting each woman choose, since the matter in question is happening inside her body, is one resolutions, but clearly it is deeply unacceptable to others, who would like some democratic participation in the matter.

John: I'm not sure exactly what you're finding unpersuasive. Do you not agree with me that, if given an opening, members of Congress would want to legislate on the subject of abortion and would not all the states to work it out on a decentralized level? If you're saying the Court ought to withdraw the right as a demonstration of their commitment to federalism: 1. If Congress would take over, there wouldn't be much left for the states, and 2. Even for people who care about federalism and want to see more things left to the states, individual rights still come first. It's not a betrayal of federalism values to respect the supremacy of rights, though ideas about federalism may influence opinions about the scope of rights.

Jim Gust said...

James Taranto in WSJ's Opinion Journal has made the point that Republicans gain political leverage so long as Roe remains the law--Democrats have been forced to defend extremist positions that a great majority of people find indefensible (even many who support choice). Republicans won't ever want to surrender this weapon, it's too effective at marginalizeing Democrats. So Roe will never be fundamentally overturned, there's no actual constituency for that among politicans. The solution, if any, lies elsewhere.