Two pro-choice law professors, Jack Balkin and Sanford Levinson, debate the question “Should Liberals Stop Defending Roe?” Balkin’s opening case, in favor of defending Roe, is a must-read:
If all this is true, why shouldn’t Democrats simply announce that they no longer support a constitutional right to abortion, or failing, that simply stop opposing efforts to overturn Roe? There are, I think, at least four reasons why this is a bad idea. First, one doesn’t “give up” on constitutional rights unless one is already convinced that they aren’t very important or don’t actually exist. Should liberals have given up on Brown v. Board of Education in 1962 when the going got rough if they genuinely believed that racial equality was a fundamental right of human beings? Or to take an example near and dear to your heart, Sandy, should we have given up on constitutional limits on presidential power and constitutional prohibitions on torture because most Americans thought our repeated carping on these issues unpatriotic, and that was bad for Democrats? If we don’t stand up for the constitutional rights we believe in when they are politically inconvenient, what is the point of having such rights? Thus, to convince me that we should give up on Roe you’ll first have to convince me (and many other people, too) that the right to abortion isn’t all that important to women’s liberty and equality; or that despite its importance, Bork and Scalia were right and that there is no such right in the Constitution. Second, we must consider the consequences. Although overruling Roe will not change the law of abortion in liberal states like New York, it will produce significant restrictions on abortion in a very large number of other states, and outright prohibitions in a handful of still other states. In a post-Roe world, abortion will probably still be available somewhere in the United States. Even so, we will probably return to a world (indeed, a world we are already approaching under current doctrine) in which abortions are freely available to the rich but not the poor. Obtaining an abortion in another state requires time to travel, making excuses (i.e., lying) to employers and to family members about one’s whereabouts, and considerable expense. Many states currently have waiting periods, and no doubt more states will adopt them…with more draconian requirements-if Roe is overruled. Current waiting period requirements increase the costs of abortion considerably because they often require two separate trips. That expense-and the deterrent effect on the poor-can only increase in a post-Roe world. Lack of access to safe and affordable abortion for poor women increases health risks for those women, and condemns them to lives of increasing economic hardship and dependency, not to mention the costs to society as a whole. The Democratic party has long claimed to stand for sex equality and for economic justice. Capitulating on Roe is inconsistent with both commitments. Third, the conventional wisdom that overruling Roe will simply return abortion to the states underestimates the strategy, the devotion, and the ambitions of the pro-life movement. If abortion is murder in Alabama, it is equally murder in New York. The pro-life movement will almost certainly push for a national solution to the abortion problem, which means that we may get more restrictive federal abortion legislation that will preempt liberal laws like those in New York. No doubt a nationwide ban on abortion is not politically feasible in the short run; what is feasible, however, even with the changed political climate that we both imagine, are significant restrictions on abortion at the federal level, especially if the Republicans maintain control over at least one branch of Congress. Moreover, if Republicans control the White House, they can do enormous mischief to abortion rights nationwide through administrative regulations that have the force of law and preempt more liberal state laws to the contrary. Fourth, giving up on Roe in practice will take down more than Roe itself. It will put enormous pressure on other Supreme Court precedents that protect people from state interference in matters of family life, contraception, and sexual autonomy. The pressure is not logical but ideological. It is easy enough for a lawyer to distinguish Roe from earlier cases protecting the right to use contraceptives (Griswold, Eisenstadt, Carey) and later cases protecting the right to same-sex intimacies (Lawrence v. Texas). After all, neither contraception nor same sex sodomy involves the destruction of an embryo or fetus. Nevertheless, this fails to account for how Roe would be overruled in practice. Imagine how one would “give up.” You can’t send secret signals to the liberal justices saying “psst, hey Ruth Bader Ginsburg, take a fall on the next abortion case.” Rather, giving up on Roe means not opposing new Republican judicial nominees who are committed to overturning Roe (as opposed to merely limiting it). But those sorts of judges will likely oppose much of the other existing jurisprudence on sexual autonomy. The opinions they write will likely emphasize that it is wholly illegitimate for courts to discover and enforce rights not specifically enumerated in the Constitution (unless, of course, it’s unenumerated rights that conservatives happen to like! See the federalism decisions). Whether or not cases like Lawrence are technically distinguishable by well-trained lawyers, they may not be distinguishable in the view of the new Supreme Court majority. There’s more; you can read the whole thing here. (Hat tip: The Debate Link.)
Barry’s BlueSky- Untitled May 2, 2024I love that Caterpillar boots were among the returned items, and in this photo an Amazon worker took, you can clearly see the "CAT" logo near the cat. Cat climbed into Amazon return box, found alive 630 miles away wapo.st/3JJ3vqT
- Untitled May 1, 2024A new cartoon for May Day! This has been an incredible year for unions in the USA - may next year be even better. Unions Have Always Done The Impossible! #PoliCartoon #Union #LaborDay2024 #MayDay2024 #May1st #UBI #LivingWage
- Untitled April 30, 2024People on reddit are fighting about a cartoon I did about why the US health care system sucks and I am enjoying this too too much. https://www.reddit.com/r/comics/comments/1ch0l0r/why_us_health_care_is_such_a_terrible_system/?sort=old
- Untitled April 30, 2024I just posted a new cartoon! It's patreon supporters only for now, but in a week or so I'll make it public. :-) https://www.patreon.com/posts/deus-ex-machina-103359912?utm_medium=clipboard_copy&utm_source=copyLink&utm_campaign=postshare_creator&utm_content=join_link
- Untitled April 30, 2024Nothing against Brian, who of course needs and should make a living. But I'm increasingly frustrated by the Substackization of blogging/news writing. To read Brian's work I have to subscribe, which at the lowest price level is $75 a year. [contains quote post or other embedded content]
- Untitled April 30, 2024Cartoonists and illustrators: Watch out for this scam (it's been going around for a while, but I only heard about it recently). Person emails you wanting to commission a bunch of illustrations to go with a presentation. Pretty high offer. At the end, they mention they want to pay you by check.
- Untitled May 2, 2024
Pingback: feminist blogs
In a post-Roe world, abortion will probably still be available somewhere in the United States. Even so, we will probably return to a world (indeed, a world we are already approaching under current doctrine) in which abortions are freely available to the rich but not the poor.
In my utilitarian analysis, the parenthetical here is burying the lede.
If one were to return abortion decisions to the states, how many actual abortions would actually be stopped? Certainly the poor residents of Orem, Utah would be up the creek, but exactly how many options do they have now? I’m in New Jersey — land of the pro-choice Republicans — so we’re not at risk at all.
The poor in the dark red states don’t have much abortion rights now. And if abortion was returned to the states, you’d have a lot of suburban women changing parties in swing states to vote Democrat.
[Hit send too soon]
Should liberals have given up on Brown v. Board of Education in 1962 when the going got rough if they genuinely believed that racial equality was a fundamental right of human beings?
Again, the writer is conflating “having a right” with “ability to exercise the right.” I certainly question the practice of suing district by district. Would segregation have happened slower if Brown were overturned? Could it possibly have happened slower?
By 1960, “just 49 southern school districts had desegregated and less than 1.17 percent of black schoolchildren in the 11 states of the old Confederacy attended public school with white classmates.” If my goal were to support desegregation, I wouldn’t give a nickel to uphold Brown — it hardly gives me any more integration than a ruling by the European Court of Human Rights would.
I am fully pro-choice and (of course) pro-integration, but I just don’t see court decisions that “give rights” doing a heck of a lot outside the margins when the majority of people in a place don’t believe in the right.
Just as Lawrence v. Texas didn’t actually do anything other than keep 3 or 4 people out of jail over the next few decades, Roe is allowing abortions to 3 or 4 extra people and Brown allowed 3 or 4 extra people to go to integrated schools. If you want to support a right, go out and convince people of that right — don’t waste money on court decisions that is helping — at best — 1.17% of the people involved.
There are more than 1,000,000 abortions per year. If Roel ceased to be, I don’t think the number of women affected would be insignificant. Leaving aside women’s rights for a moment, one wonders how many of the ‘saved’ children would become wards of the State. To believe that there are that many adoptive homes available, I believe, is fatuous.
The debate in the link is very itellectually interesting and erudite. However, viewing the whole debate over Roe wholly as political strategy is at best tunnel vision. The Democratic Party cannot, IMHO, give up it’s advocacy of a woman’s right to control the integrity of her own body without assuring its own quick demise.
The Dems have become slave to too many “issue groups” but some things are fundemental to one’s own self-image or institional self-image. For those ‘wits’ urging the Party to give up on Roe, I would remind them what B. Franklin said (or close): “Those who would give up essential liberties to gain a little temporary safety deserve neither Liberty nor safety.”
The Democratic Party cannot, IMHO, give up it’s advocacy of a woman’s right to control the integrity of her own body without assuring its own quick demise.
I agree.
The question, though, is whether financing campaigns to protect Roe is the best way to do this.
Put another way, isn’t is possible that turning attention to, say, funding education of doctors willing to perform abortions, might end up providing more women with access to legal abortions than funding an anti-Alito TV commercial?
Thousands, is my guess.
Also, who says abortion decisions would be returned to the states? As federal “partial birth” abortion bans prove, pro-lifers do not beleive that abortion decisions should be reserved to the states. Is there any reason to think they’d suddenly change their mind about this question if Roe is overturned?
:/
Alas, if that was ever truly the Democrats’ modus operandi, it has long since been replaced with “I can pay for mine. Why can’t you pay for yours ?”
In response to Richard’s comment (1)-
“… you’d have a lot of suburban women changing parties in swing states to vote Democrat.”
This is true only if the Democrats had defended Roe.
This is true only if the Democrats had defended Roe.
If I recall, Clinton once signed an overbroad welfare-reform bill that took benefits away from legal immigrants, and then said something like, “Vote to re-elect me, because I’m the only one who can undo what I just did.”
It’s not a question of not supporting Roe. Democrats are free to say “I support Roe.” And it’s certainly not a question of supporting abortion. Democrats should certainly vote against abortion restrictive laws.
I completely support abortion rights, but think that the Roe decision has probably prevented about as many abortions as it has facilitated (abortion was just becoming legal in the early 1970s, and likely would have become more widespread anyway.) How many Democrats voted for the partial birth abortion ban primariliy because they thought it was a “freebie” that the Supreme Court wouldn’t let get enforced anyway?
For me, it’s a question of how they spend their time and money. Democrats also often say things like “I support universal health care,” but probably don’t spend 1/10 of the money on getting there.
I think it’s a question of overvaluing what you have and undervaluing what you can get. Amp suggests that “thousands” of abortions may be stopped if Roe is reversed. In one sense, I completely agree. In another sense, though, I think that a similar number of thousands of abortions will be facilitated — abortions that couldn’t happen now but that might post-Roe.
I’m envisioning situations where a reddish state (say, Kentucky) passes a (from the current perspective) draconian law banning all abortions after the first trimester — a law that would be blatantly illegal now, but would be legal post-Roe. With abortions limited to first-trimester only, you’ll get a much larger majority of people who support that sort of limited right to abortion, have more support for institutions that perform abortions, more places do them, and maybe even get government funding for the first-trimester abortions.
So, maybe post-Roe, you lose your right to the 10-20% of abortions that are late-term, but you gain lots more support for the 80-90% of abortions than are first trimester, with the result of more physical and financial access for the poor, rural, or Southern who cannot get “legal” abortions today — and a comparable number of legal abortions performed overall.