A heretical proposal
Dec 8th 2005
From The Economist print edition
The Democrats (and abortion rights) might be better off if Roe v Wade were overturned
AS A general rule, Republicans are much happier with American exceptionalism than Democrats. Conservatives celebrate the right of every God-fearing American to carry a semi-automatic in his Kyoto-busting SUV while liberals protest that Europe is greener and safer. But when it comes to abortion, it is the Democrats who are the American exceptionalists.
Most rich countries other than the United States have solved the abortion problem by consulting the electorate?either through the legislature or through referendums. This led to vigorous debates and, broadly, the triumph of abortion rights. Because abortion was legalised democratically, pro-lifers accepted the fact that they had lost and abortion became a settled right. By contrast, in America, abortion is a fundamental right of privacy protected by a 1973 Supreme Court judgment?Roe v Wade.
Few objective outsiders?if it is possible to be such a thing on abortion?would argue that relying on judges rather than popular will has helped American politics: no other comparable country has such destructive culture wars. Roe left a large chunk of the country feeling disenfranchised by the court; it also established a cycle of attack and counter-attack that has debased everything that it has touched, especially the judiciary.
A prime example is the Roe-obsessed confirmation process for Supreme Court nominees. Samuel Alito, Mr Bush's new candidate, claims that the fact that he once advised the Reagan administration on how to overturn Roe will have no bearing on his behaviour on the court. No less disingenuously, liberal senators pretend they are trying to gauge Mr Alito's legal philosophy when they are trying to catch him out on Roe.
All this is bad for America; but, in political terms, Roe has been particularly disastrous for the Democrats. The Republicans have generally had the better of the abortion wars (something most liberals admit as long as nobody from NARAL Pro-Choice America is in the room). Roe has proved a lightning-rod for conservatives; and many moderates dislike the Democrats'Roe-driven defence of partial-birth abortions. So consider a heretical proposition: why on earth don't Democrats disown Roe?
Merely to mention this in public can be dangerous. Yet there are two obvious reasons for the party to do it. First, abortion rights command broad popular support in the United States, just as they do in Europe. Gallup polling since the mid-1970s has consistently shown that about 80% of Americans want abortion to be legal?either in all circumstances (21-31%) or in some circumstances (51-61%). Without Roe, abortion might be slightly restricted, but certainly not banned, as conservatives want.
Second, Roe is a pretty flimsy decision. The idea that the constitution protects ?the right to privacy? was already something of a stretch when Justice William Douglas discovered it in the Griswold v Connecticut case in 1965. Ruling that the state government could not stop married couples from purchasing contraception, Douglas wrote that the right to privacy exists because the ?specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.? It was these penumbras and emanations that were stretched still further in 1973 when the court ruled on Roe.
Some Democrats say that they regard ?a woman's right to choose? as analogous to a black person's right to vote?a basic human right that cannot be gainsaid by the electorate. This is far from convincing. The constitution is as clear about the right to vote?thanks to the equal protection clause?as it is murky on the right to abortion. And abortion isn't a clear-cut moral issue in the way that the franchise is. Bill Clinton never felt any need to argue that black voting should be ?safe, legal and rare?.
A better argument in defence of Roe is that some states might well outlaw abortion. The Centre for Reproductive Rights claimed in 2004 that 21 conservative states were highly likely to do so and nine somewhat likely. But this presumes that public opinion has been frozen in aspic since 1973. Laura Vanderkam of USA Today points out that many of these ?anti-Roe? states may well vote in favour of abortion rights: seven have Democratic governors, one (Rhode Island) is firmly in the Democratic column, and many others (Colorado, Ohio) cannot be relied upon to ban it. Moreover, the states that are most likely to vote to ban abortion?such as Mississippi and North Dakota?already have very few abortion clinics in any case: women who want abortions in those states already have to travel huge distances. Crossing state lines would not make that much difference.
Stubborn as a mule
The main reason, alas, why Democrats will stick by Roe is simply because it is a totem in the culture wars. Why should pro-choice forces surrender any ground? That argument makes sense if you want to defend ?choice? right into the ninth month, as some zealots do. But for most Democrats who merely want to keep abortion legal under most circumstances, that right would be more secure if it carried democratic legitimacy.
Embracing the democratic process would send a powerful signal that the Party of the People has rediscovered its faith in the people. Relying on judges to advance the liberal agenda allowed conservatives to seize the mantle of populism. Roe has given Republicans a free ride: they can claim to oppose abortion in the comfortable knowledge that it will never be banned. But imagine if Roe were overturned. How many Republicans would vote for a ban on abortion that only one in five Americans support? The conservative coalition would be split asunder.
History is full of great generals who won their wars by staging strategic retreats. Field-Marshal Kutusov allowed Napoleon to occupy Moscow, tempting him to over-extend himself. The Democrats might emulate that aged Russian's wiliness?and stage a strategic retreat to the high ground of popular opinion.
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