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Debate Club
DEBATE CLUB 11/28/05

Should Liberals Stop Defending Roe?

Sanford Levinson and Jack M. Balkin debate.

This Week's Entries: Monday | Tuesday | Wednesday | Thursday | Friday

Roe v. Wade polarized American politics from the minute the Supreme Court issued its ruling in January 1973. But lately, the decision has come under fire from the left as well as the right, as liberal critics line up to reject the Roe majority's legal rationale and Democrats wonder if the landmark has become a political liability.

This week, the Supreme Court hears arguments in Ayotte v. Planned Parenthood, a case that seeks to limit some of Roe's flexibility. Such challenges have been frequent in recent years and, as the composition of the Supreme Court shifts to the right, they may be increasingly successful. Should the left stop defending Roe?


Sanford Levinson is W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair and Professor of Government at the University of Texas at Austin. Jack M. Balkin is Knight Professor of Constitutional Law and the First Amendment at Yale Law School.

Levinson: 11/28/05, 09:15 AM
I suppose I should begin by saying that, like John Hart Ely, I support a woman's right to choose whether to have children, including a right to opt for abortion. That famously did not prevent Ely from offering one of the earliest and most passionate denunciations of the legal bona fides of Roe v. Wade. Unlike Ely, I was not (and am not) outraged by the legal arguments presented in Roe v. Wade. But this may be because I do not take "legal arguments" all that seriously. Or, perhaps more to the point, I believe, with regard to any issue likely to make it to the docket of the Supreme Court, that there are almost certainly strong arguments on both sides. As Richard Posner argues in his "Foreword" to the assessment of the past term of the Supreme Court in the current issue of the Harvard Law Review, it is ultimately the political values of the judges rather than "law as such" that explain the decisions of the court.

Among other things, this means that one cannot dismiss the legal critics of Roe and subsequent decisions as being "outside the mainstream." There has been a debate now for almost a third of a century on the legal legitimacy of Roe, and there is no reason to believe that it will subside in our lifetime. As political scientist/lawyer Mark Graber has suggested, constitutional issues become "settled" if and only if the opponents give up. The most serious opponents of Roe give no indication that they are prepared to give up the struggle, not least, of course, because they view abortion as the wanton murder of innocent children. I do not share that view, but I cannot pronounce people who hold it as being irrational either in their philosophical view or the belief that the Constitution, properly interpreted, allows state legislatures to prevent abortion.

As already suggested, though, my concerns about Roe, and whether the Democratic Party should continue to expend a great deal of political capital on keeping it on the books, have less to do with specifically legal concerns—i.e., what constitutes the best interpretation of the Constitution?—and far more to do with the politics of the abortion issue in 2005 and beyond. I am increasingly persuaded that the principal beneficiary of the current struggle to maintain Roe is the Republican Party. Indeed, I have often referred to Roe as "the gift that keeps on giving" inasmuch as it has served to send many good, decent, committed largely (though certainly not exclusively) working-class voters into the arms of a party that works systematically against their material interests but is willing to pander to their serious value commitment to a "right to life."

Why do I say "pander"? The reason is simple: Most (though certainly not all) Republicans, including, quite possibly, both Presidents Bush, are absolutely cynical in their professed regard for the "right to life." The expression of such a regard is a good vote-getter, but professional politicians are well aware that most of the country in fact supports the clumsy compromises stumbled into over the past 30 years, largely through the aegis of Sandra Day O'Connor. I am convinced that the last thing that Karl Rove desires is the return of abortion to the unfettered world of politics, where the Republican Party would actually have to take responsibility for defining policies regarding reproductive choice instead of being able to posture in the knowledge that the Supreme Court will invalidate many, perhaps most, egregious limits on choice. (Why do you think, for example, that President Bush, who is eager to embrace the pernicious proposal to constitutionalize a view of marriage as uniquely heterosexual, has totally failed to support any proposal to overturn Roe by amendment?)

From a crass political perspective—i.e., a concern with electoral success—the best thing that could happen to the Democratic Party is the overruling of Roe and the full "politicization" of abortion. Confirmation of this view was recently provided by Rep. Thomas M. Davis III, a Virginia Republican, who told a breakfast hosted by the Christian Science Monitor that the overturning of Roe would likely produce "a sea change in suburban voting patterns." He is almost certainly correct.

Many liberals are mystified that Kansans vote against their class interests and in favor of "values." But, of course, Kansans are not unique in believing that values often trump other interests. The only thing that explains the devotion of Senate Democrats to maintaining Roe is a devotion to the value of reproductive choice. That is indeed an important value, but there is every reason to believe that the democrats could prevail in a national contest if the alternative is criminalization of abortion. The Democrats don't need Roe; the Republicans do!

This is not my last word on the issue. I am certain, for example, that my very good friend and frequent co-author Jack Balkin will remind me that many women—and not only the Republican Party—benefit from Roe and its progeny. I look forward to addressing that argument in the remainder of the week.

Balkin: 11/28/05, 01:25 PM
Sandy, we both agree that Roe helps keep the Republican coalition together. With the basic right to abortion secured, the legislative debate centers largely around issues like parental notification, mandatory waiting periods, and bans on partial birth techniques. With Roe gone, criminalization of most abortions would be on the table, and, not surprisingly, the most devoted elements of the Republican Party's pro-life base will probably demand that Republican candidates support this position. Some number of libertarians, suburbanites, and women who fall into neither category would leave the party; not that many would have to do so to swing elections to the Democrats.

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.

It gets worse. The same sorts of nominees who are ready to overrule Roe today (i.e., people like Clarence Thomas and Antonin Scalia) are also going to vote against a large number of other constitutional rights that Democrats and liberals care deeply about. Giving up on Roe means giving up on those rights as well; or to put it another way, whether a Republican nominee seeks to overturn Roe is a good proxy for that nominee's positions on a wide range of other constitutional questions.

And that's not all. Mark Graber has pointed out that constitutional questions often get settled when one side gives up. Similarly, Bruce Ackerman argues that this is when important "constitutional moments" occur. Giving up on Roe means that Democrats would be in the same position as Republican critics of the New Deal in 1940, or Andrew Johnson, who opposed the Fourteenth Amendment, in 1868. This time we progressives would be performing the "switch in time," capitulating to conservative ideas about what the Constitution means. Roe would enter what Sandy and I call the "anti-canon"; it would become the canonical example of how one shouldn't decide constitutional cases. Roe would become the modern day analogue of Dred Scott and Lochner v. New York and Plessy v. Ferguson and Adkins v. Children's Hospital—the key cases that law professors teach their students were wrong, perhaps even "wrong the day they were decided." Many of Roe's most vocal opponents currently believe this, but most people in the country, thankfully, do not. Now imagine a constitutional culture in which Roe is generally agreed to be just like Plessy or Dred Scott, where it is generally seen as the modern canonical case of bad constitutional decision making. Do you really think that in such a culture other rights and other decisions that Democrats and liberals care about would be safe? Do you really think that Roe v. Wade is that isolated from the matrix of concerns at the heart of the progressive agenda?

The solution for Democrats and progressives is not to give up on Roe. It is to defend it in the democratic political process. Democrats should promote—and run on—a federal Freedom of Choice Act that would codify key elements of the right to abortion and preempt state legislation to the contrary. Such an act would place Congress's constitutional judgment squarely behind the Supreme Court's. The political branches should take responsibility for saying that Roe is the law of the land rather than letting the court take all the political heat for protecting the right to abortion.

Many people doubted the legitimacy of Brown v. Board of Education until the 1964 Civil Rights Act; Title VI of that Act effectively codified Brown. After that point, as Archibald Cox put it, Brown was made more fully the law. The same is true of abortion rights; if a Freedom of Choice Act passes (it almost did during the early 1990s but for Democratic incompetence and infighting) it will produce a constitutional settlement in the opposite direction—this time in favor of women's liberty and equality.

Such an act couldn't pass in today's Congress. Indeed, as I suggested above, it is far more likely in the current political climate that we will get anti-abortion legislation at the federal level. But that's really not the point. By making the Freedom of Choice Act an issue in elections from now on, Democrats would require Republicans to say whether they would support abortion rights, or whether, in fact, they really want Roe v. Wade overturned. Note that if Republicans respond that a Freedom of Choice Act is unnecessary, they are effectively agreeing that Roe should stay. Perhaps most important, by putting a Freedom of Choice Act squarely on the political agenda, even if it cannot pass today, Democrats would be urging a solution to the abortion question in the political process, not in the courts. And who knows, if they make it a key element of their program, they may be able to pass such a law the next time they return to power. That is the proper way to reconcile democratic politics (and Democratic politics) with the constitutional right to abortion.

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Levinson: 11/29/05, 09:03 AM
I think that we should acknowledge a peculiar aspect of this "debate" (really a conversation between two close friends), which is that both of us support reproductive rights, including the ability of women to get abortions. These exchanges would have a far different tone, of course, if, say, Michael Stokes Paulsen or any other adamant opponent of abortion were participating. This means, among other things, that I find obvious force in your challenges. I certainly would not want to see Lawrence overturned, for example. Nor, as already suggested, do I want to see reproductive rights delegitimated. The question is whether de facto acquiescence in the overruling of Roe would have these effects.

So, Jack, let me address just one of your points, which is what it would mean to "give up" on Roe. For me, it means nothing more (or less) than giving up on the proposition that courts will be the principal monitors of what can be done with regard to abortion. Instead, one would look to the ordinary political process. I don't think it is comparable to Republicans "giving up" on the New Deal or Southern whites "giving up" on school segregation. In the former case, Republican presidents from Eisenhower to George H. W. Bush were willing to endorse the basic New Deal "settlement" and, indeed, to offer legislation that presumed it. In retrospect, we can see that Richard Nixon was the last "New Deal President," given the remarkable growth in national programs that took place during his administration. Similarly, all but a few mossbacks now concede that school segregation, at least if compulsory, was wrong and that Brown was rightly decided.

The crucial question, then, whether one who supports, in effect, daring the Republicans to overrule Roe is committed to saying that Roe is comparable to Dred Scott, Lochner, or Plessy. I don't think that is at all the case. The Democrats need not say they/we were "wrong" in supporting Roe, but, rather, that the important rights that Roe recognized—and for thirty years has taught to the American public in general—can now be reasonably well protected through the political process. They can also note that the entire judicial system has in significant ways has been harmed by the extent to which Roe has become the principal focus of all nominations. Given the world we live in, I would much rather have a "pro-life" Democrat as a justice who is also committed restraining excesses of presidential power in the "global war on terror" than a "pro-Roe" Republican who will rubberstamp executive overreaching. There should be more to one's jurisprudential universe than abortion. Consider in this context the fact that Democratic nominee for the Senate in Pennsylvania is Robert Casey, Jr., like his late father anti-abortion. This represents an overdue recognition that the Democratic Party must have space in its tent for people who oppose abortion (and Roe).

I'm not at all sure I agree with you, Jack, that knowledge of someone's position on Roe is generally predictive of their stance on the rights of gays and lesbians, etc. I do think that abortion is special, in much the same way that capital punishment is distinguished from ordinary punishment because, as it is often said, "death is special." Speaking personally, I have a great deal of trouble genuinely respecting those who oppose same-sex marriage or other acknowledgment of full equality for gays, lesbians, bisexuals, and transsexuals. I don't have the same trouble understanding those, like our friend Mike Paulsen, who oppose abortion. I am confident that I am not alone in this feeling. There are some issues where I'm more than willing to say, in effect, "Shut up. You're a bigot and that's all there is to it. You shouldn't expect to be able to articulate your views, and even potentially win, in the ordinary political marketplace, because they have been taken off the political table by the Constitution." But I find it difficult to say this to people I regard as on "the other side" of the abortion issue. To constitutionalize the issue is, in a profound sense, to treat them with disrespect, to say that the issue has indeed been pretermitted by lawyers interpreting a notoriously open-ended document.

I don't think it contradicts what I have just said when I say that I couldn't agree with you more about the wisdom of Democrats aggressively promoting a federal Freedom of Choice Act. But doesn't this underscore the point that it, as you yourself italicize, the democratic political process that should decide the issue rather than the court? And, even more to the point, a democratic political resolution would be far more likely to be accepted by the general population as legitimate in a way that decisions by the Supreme Court are not. (And why should they be? Both of us are devotees of what has come to be called "popular constitutionalism," which rejects judicial supremacy in favor of a far more open public dialogue about constitutional meaning.)

So where do we agree and disagree? We both seem to agree that Roe now operates as a windfall for the Republican Party. We both agree that is a very bad thing. But you believe that Roe, even in its currently half-eviscerated state, offers enough real protection to vulnerable women to be worth the benefit it provides the Republicans politically. I do not (or, more accurately, I have my real doubts).

Balkin: 11/29/05, 01:21 PM
In the current political context, giving up on Roe means allowing Republicans to nominate Supreme Court replacements for O'Connor and Stevens, if and when he retires, who seek to overturn Roe. That is because the Republicans, and not the Democrats, control the White House (and most likely the Senate, too) until 2008. Signaling that the Democrats will accept candidates who will vote to overturn Roe will not elicit from the Bush White House Republican nominees who are anti-Roe but pro-gay rights, who seek limits on presidential power, who support affirmative action, and who are moderate to liberal on all the other issues that Democrats care about. There are, no doubt, such persons within the Republican Party, perhaps even a few on the current federal bench. But Bush will not pick them, for the Democrats' acquiescence on Roe will mean that Bush is freer to nominate Justices in the mold of Scalia and Thomas in order to please his base precisely because the Democrats will not use the choice issue against him. At that point, what can the Democrats use to oppose a hard right candidate? Will they threaten to filibuster because the candidate does not sufficiently protect gay rights? Will they collectively band together to prevent the growth of executive power in war, when the issues are complicated and difficult to explain to the general public?

As a thought experiment, imagine what would have happened this year if, before the Roberts and Alito nominations, the Democrats had signaled that appointing candidates who sought to overrule Roe would not produce substantial opposition. Do you seriously believe this would have produced more moderate nominees from President Bush, nominees more committed to gay rights or more devoted to subjecting the executive to the rule of law? To the contrary, Bush would have seen this as a sign of political capitulation, and he would have felt liberated to play to his base even more.

Given that it is Republicans and not Democrats who will choose the next nominee(s), giving up on Roe opens the door not to the Bob Caseys of the world, who are liberal Democrats, but to the partisan entrenchment of hard right judges in the Supreme Court. You and I have written that allowing the president a free hand to entrench the judiciary with ideological allies over time is what produces constitutional revolutions. Why do you think that giving up on Roe will forestall such a revolution rather than hasten it? Perhaps your argument is that the Democrats may lose O'Connor's and Stevens' slots, but they will win the White House in 2008 and will never lose it again for twenty years. But at that point, I would submit, the cow is already out of the barn door: there will be a hard right majority on the court that will sit for a generation or more, using the power of judicial review selectively to strike down laws they do not like and promoting a wide range of conservative causes. You may think that this is not very important, because what the Supreme Court does in individual rights cases is far less important than the hidden structural issues lurking in our Constitution (you are writing an excellent book on this subject right now); but most Democrats do not agree with you. What will you say to them?

Let me turn to a second area of disagreement: the reasons why one should turn to the political process to protect abortion rights. I do not regard the protection of constitutional rights by courts and their protection by the political process to be an either-or proposition. To the contrary, the two kinds of protection reinforce each other. History teaches that minorities are most often protected by courts when they are also gaining recognition in the political process; the Supreme Court most often moves to protect rights when doing so is supported by national public opinion.

I argue that Democrats should press for a Freedom of Choice Act in part because I believe that this will enhance the legitimacy of courts protecting the constitutional right to abortion, not detract from it. That is precisely what happened with the Civil Rights Act and Brown, and in my view it is no slight to Brown's status as constitutional law to note that it was ratified in the political process. My colleague Reva Siegel has recently shown how pressing for change in the political branches helped secure the legitimacy of the court's sex equality decisions in the 1970s. I would also point out that the gay rights movement's successes in the Supreme Court have not been unrelated to its long term successes in the political process in various states and localities. The best way to protect abortion rights is not to give up on constitutional protections for abortion, but to press for legislative ratification of the same.

Like you, I strongly believe that people should fight for their constitutional rights in legislatures, not because this makes courts irrelevant, but because both courts and legislatures are instruments for protecting constitutional rights, and when people pursue both avenues, they make rights more secure.

Courts' protection of the right to abortion, in fact, is only a small subset of the rights that are necessary to secure women's equal citizenship in this country, many of which must come from the legislative process rather than from courts. Robin West has described abortion as a "pathetically inadequate remedy" for the ways that society limits women's full participation. To secure women's equal citizenship, our legislatures must honor and support the work of motherhood far more than they currently do; they must invest in health care, nutrition, child support, and workplace reforms. They must get over their qualms and make contraception (and education about contraception) more widely available, particularly to poor women. (In fact, 47 percent of the 6.3 million unplanned pregnancies that occur each year in the United States occur among the 7 percent of women who do not practice contraception and are at risk of unintended pregnancy.)

Sadly, legislatures too often are unwilling to make these necessary reforms; instead, they insist on creating ever new restrictions on abortion directed at poor women because they are easiest to deter and control. I believe that Democrats, liberals and progressives alike should take the initiative, locating reproductive autonomy within a larger class of reforms that help parents raise their children, reforms that educate women about their reproductive choices, and help free them from the hardships and the often desperate straits that lead to abortions. Abortion is a tragedy of circumstances; if the state can prevent those circumstances and help secure women's equality in the process, why should it not do so?

There are many pro-life people who feel much the same way about many of the reforms I have just suggested, and would gladly support them. That approach, I think, would do far more to foster cooperation and compromise in politics than caving into the angry demagoguery that passes for constitutional principle in our current age.

In short, I don't believe that liberals should stop talking about abortion rights; I do believe they should start talking about the rights of women and the rights of families. Those, to my mind, are the family values to which our political process currently pays least attention. To do that, however, we don't have to give up on Roe; we do have to recognize that the abortion right is only a small part of what justice demands for women and for family life in this country.

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Levinson: 11/30/05, 05:31 PM
Again, I am in substantial agreement with what you say, so let me try to make ever-more clear where we seem to disagree. It is surely not about the unwisdom of acquiescing in any more hard-Right appointments to the federal judiciary. Indeed, I believe that the Democrats should filibuster and dare the Republicans to play "the nuclear card," though that is the subject for a different debate. What I wish the Democrats had done immediately upon Justice O'Connor's resignation and Chief Justice Rehnquist's death is to be more imaginative in "getting names out" of Republicans who could have been confirmed with overwhelming support. For example, I think that Democrats might well have pushed for the nomination of Mary Anne Glendon, of the Harvard Law School, probably the leading scholar of comparative abortion law in the United States, a very strong Catholic—she is an official advisor, I believe, to the Vatican—and thus, I would expect, an opponent of Roe. But she comes out of the "social justice" wing of the Catholic Church, the same wing, for example, that is highly critical of capital punishment and dismayed by the irresponsible (and immoral) dismantling of the welfare state. I am sure there are some other similar persons, some of them, perhaps, on the federal judiciary. (As it happens, I very much want some Justices without judicial experience, but that, too, is the subject for a different debate.)

The point is that Democrats seem able only to react (ineptly), rather than to be more pro-active and throw down a nuanced gauntlet that would reveal the extent to which Bush in fact cares far less about reversing Roe (for the political reasons that both of us seem to agree on) than putting in place, to the extent he can, judicial radicals who want to assault some basic tenets of American constitutionalism. As suggested above, the best way to do this would be to scour the landscape for good Republican nominees who would, in the real world, be expected to appeal to most Republicans, including those members of the vaunted "base" who are truly "pro-life" without sharing the full program of the Republican Right (such as tax cuts for the rich and the evisceration of the welfare state).

Part of what has become so corrupting in American politics is the rise of single-issue groups who are committed to "no compromise" with those who are perceived as the enemy. I suppose what I am trying to do, in a very awkward way, is to figure out what kinds of compromises liberal Democrats, committed to reproductive choice, should be willing to make in order, for example, to develop political coalitions that will maintain and pass new programs that would be truly "pro-life" by providing poor mothers with badly needed resources, day-care centers, job-training and the like. And, of course, it is ultimately the fate of poor women that should most concern us. I am dubious, for example, that any upper-middle-class (or even many middle-class women) would find it particularly difficult to get abortions even if Roe were overruled and abortion criminalized in certain states (since it is unthinkable, as a practical matter, that Congress could successfully pass a national law criminalizing abortion).

In the best of all worlds, we would maintain Roe-through passage of the kind of legislation that both of us endorse—and pass a host of generous programs designed to help poor women. But we don't live in the best of all worlds, and our task is to figure out which fights are worth fighting to the bitter end and what kinds of tactical retreats could in fact contribute to longer-term victory with regard to the most important ends.


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Balkin: 12/1/05, 09:02 AM
No doubt Democrats could suggest judicial candidates like Mary Anne Glendon (I am, by the way, not at all sure that Professor Glendon currently supports overturning Roe as opposed to merely limiting it). Nevertheless, both you and I are aware of a central fact about judicial nominations—the party out of power can suggest all the candidates it likes, but the president gets to make the nominations. And one wonders why this particular president wants to do the Democrats any favors, particularly if appearing to do so will rouse concerns among his base (We saw a little of this during the Miers nomination when many movement conservatives were suspicious of Miers precisely because Senator Reid had spoken approvingly about her).

Your larger point is that Democrats need to find ways to compromise with people who have moral qualms about abortion. And so they do. I don't believe, however, that the best way to think about this project is to make a "strategic retreat" or to forbear from "fighting to the bitter end." Compromise does not always have to be surrender; it can involve finding common ground.

Democrats should begin by acknowledging that abortion also gives them moral qualms, especially as the pregnancy proceeds. Abortion, as I have said, is a tragedy of circumstances; tragedy means difficult choices, not carefree ones. It means dealing with harsh realities, not pretending that they don't exist.

Democrats should press for policies that treat abortion with the moral seriousness the subject deserves. We should seek to reduce the number of abortions, not by making them more difficult to obtain, but by working to help women from falling into those desperate situations in which they feel that they must resort to abortion. We should provide women with the information and opportunities they need to make the decision about whether to become a parent earlier rather than later. (Most Americans do not realize that 87 percent of all abortions performed in the United States occur in the first trimester, when the fetus is least developed and abortion poses the fewest complications. Many abortion regulations, by discouraging abortions and making them more difficult and more expensive to obtain, have the perverse effect of delaying when women are able to obtain the procedure.). We should make it far easier for women—including single women—to raise their children if they decide to carry them to term. And for those women who cannot cope with raising a child, we should strive, as best we can, to reduce the social stigma of giving children up for adoption.

These are some of the ways in which we can find common ground with opponents of abortion. Each of them is consistent with our commitments to gender equality and economic justice. None of them require us to give up Roe; indeed, the justification for reproductive rights is premised on those very same principles. Tomorrow, I hope to conclude our discussion by suggesting why support for the principles underlying Roe will prove especially important as we face the reproductive issues of the future.

Levinson: 12/1/05, 12:29 PM
Jack, as always, my conversations with you both illuminate and provoke me to try to clarify my own views. Let me conclude this exchange by offering the following audacious suggestion: Democrats should sponsor the following constitutional amendment: "Policies relating to abortion shall be the exclusive province of the states. Nothing in the Constitution shall be interpreted to limit state autonomy with regard to abortion." (In form, this is quite a bit like the 21st Amendment that repealed Prohibition, though one of the most controversial decisions of the court this past year applied the dormant commerce clause to limit state autonomy regarding the sale of wine.)

My rationale is as follows: Democrats (and others) opposed to the current domination of Congress by the radical right should call the Republican bluff, on which they have capitalized so well for the last 20 years in American politics. One need not oppose Roe in order to support proposing this amendment, as a political matter. Instead, one could put it directly to congressional Republicans (and, for that matter, to President Bush, who is so quick to support demagogic amendments like that concerning same-sex marriage): The Democratic Party—John Kerry, Hillary Clinton, Mary Landreieu, Blanche Lincoln, Joe Lieberman, etc., etc.—will agree, in effect, to the equivalent of a national referendum around a relatively simple question: Should Roe be preserved? Thus it is not a contradiction for a Democrat to say, "I support this proposal precisely because it will serve to clear the increasingly fetid air that is distorting American politics, and I will strongly urge the legislators in my state not to ratify it and therefore to send a strong message that We the People in fact support reproductive choice." This would be a way of measuring the true "silent majority" that all the polls show support the current stance of the Supreme Court. It would serve to make most state elections in 2006 and 2008 turn on support for retaining Roe as against accepting the possibility of criminalizing abortion.

If we are right in our basic political analysis, which we both agree on, then the Republican Party would be fatally flummoxed. What would George Bush say, if Hillary Clinton, Barack Obama, and Evan Bayh, for starters, all united around a "let's really test where the people stand" amendment. There is no possibility of getting an amendment through the Congress that says, "No person shall be denied her right to choose whether or not to have children, including an abortion if that appears necessary." But the only way my proposed amendment would fail to get through Congress is if Republicans refused to support it. And why do you think they would do that? Because they know it would be fatal to preserving their coalition, which depends on never actually having to take responsibility for setting serious policies on abortion.

One problem with Roe is precisely that it has never gained the legitimacy that comes from genuine congressional endorsement. Both of us support congressional legislation, but, given today's politics, it will not be an effective move simply to declare that we Democrats support the "Safe Access to Abortions Act of 2006." Rather, we should engage in a jujitsu move and work to put Roe in effect on the ballot. There is, of course, almost no possibility that such an amendment, if proposed, could be ratified, given the mechanics of Article V. (The awfulness of Article V could well be the subject of a future discussion.) But, of course, that is also the case with such a demagogic amendment as that concerning same-sex marriage. The Republicans don't really expect to win; they expect only to disrupt the Democratic Party. It is time that we learn how to engage in similar tactics with regard to the already-fraying Republican coalition.

So my conclusion is to agree with you that the Democrats should fight to the finish against the nomination of Judge Alito and other hard-core conservatives, whose opposition to Roe is only one among many objectionable features. But we should think of ways to expose the fact that if Roe is kept on the books, it is not because of the machinations of Democrats who persist in endorsing what has been portrayed as an illegitimate judicial fiat, but, rather, because "We the People," given an opportunity in fact to overrule Roe by constitutional amendment, ringingly refuse to do so.

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Balkin: 12/2/05, 08:43 AM
Sandy, your proposed constitutional amendment is certainly provocative, and it certainly would get attention from the public if, as you suggest, a group of liberal Democratic Senators proposed it. I wonder, though, if it would not quickly be dismissed as little more than a political stunt, with the result that the Republicans would pay almost no price for refusing to take it seriously. I still prefer the strategy of making a Freedom of Choice Act a campaign issue; for one thing, it has a far greater chance of someday becoming law than an amendment (an amendment which, as you say, you don't even want adopted). In addition, Republicans can far less easily refuse to address a Freedom of Choice Act. Finally, and perhaps most important, "winning" a vote on your proposed amendment (i.e., failing to gain approval by two thirds of both houses of Congress plus three fourths of the state legislatures) shows only that a devoted minority wants to preserve Roe, something we already know. Winning a Freedom of Choice Act, by contrast, means actually passing a bill; it would demonstrate that a majority of the nation's representatives supports the decision, and it would have a far more powerful legitimating effect in practice, akin to the effect of the 1964 Civil Rights Act.

I promised yesterday that I would say a few words about the future, and about the new biological and reproductive technologies like human cloning and human genetic engineering that are almost here. I think that any discussion of whether Democrats should give up on Roe has to consider how Roe would apply to these emerging issues. I believe Roe, correctly understood, will be quite important to these questions and that this provides yet another reason that we should not jettison it now.

Roe is premised on three ideas: First, an embryo or fetus does not obtain constitutional rights from the moment of conception. Second, the state nevertheless has legitimate and powerful interests in the life and potential personhood of the embryo or fetus. Third, those interests, although quite important, must yield to preserve women's equality.

I use the word "equality," and not "privacy," which Roe itself used, for a reason. My view is that Roe should always have been conceptualized as an issue of women's equality and practical freedom, not simply as a free floating question of reproductive liberty or "choice" isolated from the actual social situation of women, a situation in which traditional gender roles and social and economic forces combine to push large numbers of women repeatedly into conditions of economic and social inequality and dependency.

The constitutional right to abortion is a necessary evil produced by women's particular situation. The obligations of parenthood and child care continue to fall far more heavily on women than on men, and this is so even after the successes of the feminist movement in the 1970's. Restrictions on abortion force women to become mothers against their will, imposing life-altering obligations on them in ways that our society has never demanded of men. As my colleague Reva Siegel aptly puts it, abortion laws treat women not as murders, but as mothers, as people who exist to rear children, often in situations of economic and social dependency. And prior to the actual raising of children, prohibitions on abortion require women, unlike men, to surrender their bodies to the state for the purpose of bearing children, sometimes at risk to their life and health.

Although today we use the word "choice" to describe the position in favor of abortion rights, it should more properly be called "choice under conditions of sex inequality." Only in Casey does the Supreme Court start to edge toward equality language as a way of conceptualizing the abortion right; but this move, I would argue, is crucial.

The equality interpretation of Roe will be increasingly important as we encounter new reproductive technologies like cloning and genetic engineering. If Roe is about "choice" in the abstract, about the right of people to reproduce (or not reproduce) without interference from the state, there is no clear boundary that makes this right inapplicable to new reproductive technologies like cloning or genetic engineering. But if we understand that the abortion right was primarily designed to help secure women's equal citizenship in a world in which reproductive burdens and the life-altering obligations of motherhood fall heavily on them, we get a very different perspective. These technologies are not necessary to ameliorate women's inequalities with men, and indeed, one can easily imagine how these technologies might someday be used to undermine women's equality. For example, women might be coerced into surrendering their eggs for experiments, or pressured to become professional human incubators.

Where new reproductive technologies do not further equality between the sexes, their connections to the underlying justification for the abortion right are greatly attenuated, and the question of their regulation should be left to the political process.

That does not mean, however, that Roe is wholly irrelevant. Roe also holds that embryos and fetuses do not have independent constitutional rights, and that the state has legitimate and important interests in their protection. Under the framework established by Roe, therefore, there is no independent constitutional right to prevent the beneficial development of these new technologies; but equally important, governments may regulate these technologies in the public interest and in the interest of future generations. In short, an interpretation of the abortion right grounded in women's equality leaves the big issues of how to deal with new reproductive technologies to the political process. That is, I submit, precisely where they should be.

Too much of the current coverage of debates about new reproductive technology assumes that the pro-choice side will likely support it because they support Roe and the pro-life side will likely oppose it because they oppose Roe. The reality, I think, will prove much more complicated, and we will see new alliances forming as it becomes clear that the issues at stake are quite distinct from those that gave rise to support for abortion rights. The equality interpretation of Roe will allow people of different views to find common moral ground within the political process on the very troubling and important issues of biotechnology and bioethics. That is all the more reason not to give up on Roe, but to keep it.

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