Life After Roe v. Wade: The Good That Would Flow From Overruling By Itself

Several days ago, Rick Garnett posted observations and questions about abortion from Professor Steve Shiffrin (here), inviting thoughts from Mirror of Justice members about what policies ought to be adopted in the United States should Roe v. Wade be overturned. In a future posting, I’ll respond more directly to the question and offer some tentative thoughts about what we might find in a post-Roe v. Wade legal regime that protected unborn human life. In this posting, instead, I want to emphasize what tremendous good would be accomplished by the removal of Roe v. Wade as a constitutional precedent, that is, what good would be realized directly from the overturning of that pernicious decision, whatever else might follow in terms of concrete legislative responses.

First, the removal of Roe v. Wade would remove the misguided but nonetheless persistent and widely-accepted argument that nearly-unrestricted access to abortion must be a good thing because it is, after all, a constitutional right. By transforming abortion from a controversial and complex moral and political question into a constitutional entitlement, Roe v. Wade bestowed upon abortion the status (in the minds of many) of a positive good. It withdrew from the supporters of liberal abortion laws the obligation to frame an ethical justification, beyond absolute claims of personal control and an extremely isolated view of individual autonomy. As a constitutional right, and a fundamental right at that, abortion was inherently justified. Once Roe were removed as a precedent, those who advocate an abortion license could no longer simply cite the Supreme Court’s ruling and regard that reference as obviating any need to discuss the morality of abortion or to consider the societal impact of hundreds of thousands of abortions performed annually.

Second, and related to the first, after an initial period of confusion and probably heightened public distress (more on this below), the presumptions in the argument about abortion would shift toward those who unselfishly advocate protection of unborn human life. If advocates for the abortion license were obliged to frame their arguments in terms of what is good and right, rather than being able to pull out the trump card of a constitutional right, the argument moves in our direction. When the legalistic language of constitutional construction and emanations from penumbras is withdrawn, the debate will focus even more tightly upon the merits, allowing the witness for life to be heard more effectively and more powerfully.

Moreover, attention may be more effectively drawn to the moral side-effects of the regime of abortion-on-demand—irresponsibility in sexual conduct, evasion of obligations by putative fathers, devaluation of children, and intolerance for the dependent, “inconvenient” members of our society. By framing abortion as a nearly unqualified constitutional right, without fully considering the claims of human life, we have not taken a stride to a more virtuous, healthy, or free society. At present, Roe stands like a towering but tree over the landscape, leaving the underlying societal and moral questions shrouded in shadow. If that sinister tree is toppled, the light of day may then filter down into the darkness and reveal the culture of death in all its ugliness, no longer hidden by the monstrous growth of Roe.

Third, as long as Roe continues to loom over the constitutional landscape, any legislative measure that implicates, even indirectly, abortion also fall under its shadow. Limitations on abortion at any stage, prohibitions on partial-birth abortion, laws mandating medical efforts to save the lives of victims of abortion who survive the procedure, legal preservation of parental rights through notification requirements, laws protecting spousal rights, laws ensuring informed consent by provision of information concerning fetal development, prohibitions on use of taxpayer monies to fund performance of abortions or abortion counseling, etc. are subject to constitutional attack so long as the Roe regime persists. Even when a particular category of legislation survives a particular litigation attack, there always remains the prospect that abortion jurisprudence will shift in the other direction, that similar legislation will be distinguished in effect and thus in validity, or that new theories will be formulated by teams of “pro-choice” legal advocates to mount yet another court challenge against such legislation. Thus, even aside from new legislative restraints on abortion, the current legislative movements toward protection of human life, even indirectly and imperfectly, would stand on firmer ground without Roe.

Third, as a jurisprudential black hole that draws in and deforms everything that comes near its wandering path through spacetime, Roe’s gravitational pull has tended to collapse every nearby area of law into a pro-abortion singularity. In particular, the law of freedom of expression has been severely distorted, as the expressive rights of those who protest abortion have been suppressed. While the Supreme Court generally upholds broad protections for speech, those protections seem to disappear when the subject of abortion is in the background, resulting in greatly diminished speech protections for those who protest abortion. On the suppression of the speech rights of pro-life protestors, see generally Lynn D. Wardle, The Quandry of Pro-Life Free Speech: A Lesson from the Abolitionists, 62 ALB. L. REV. 853, 881-915 (1999). In sum, constitutional jurisprudence in general will move onto a more healthy path once Roe v. Wade is overruled.

Fourth, overturning Roe v. Wade would enhance democratic governance, the most fundamental freedom of all. As Father Richard John Neuhaus reminded us, during a speech here at the University of St. Thomas School of Law less than two weeks ago, if the most important questions that face us as a people, such as the basic question of life itself, are taken away from the people and reserved to a judicial oligarchy, then democracy in any meaningful sense has been lost.

The ability of the public to engage in political deliberation about such issues is undermined by removing them into the judicial arena. The dialogue of constitutional litigation is twice removed from the ordinary discourse of the people. As Frederick Schauer once suggested, “just as legal language is different in kind from ordinary language, constitutional language may be different in kind from other legal language.” Frederick Schauer, An Essay on Constitutional Language, 29 UCLA L. REV. 797, 800 (1982). Granting the Supreme Court supremacy over fundamental questions of social and moral governance through the mechanism of judicial review disempowers the people from full participation in their government. Constitutional litigation simply is not a friendly forum for a balanced discussion of the wide range of values and concerns relevant to disposition of a public issue. Litigation and adjudication force communication along a narrow path. The focus of legal advocacy is upon rights and wrongs. The adversarial process encourages a winner-take-all attitude. The possibility of compromise is suppressed. The values of responsibility, respect for others, and moral character are largely missing from the rights-talk of the courtroom. (Mary Ann Glendon in her classic book, “Rights Talk,” has written perceptively about the excessively “strident language of rights” that has developed in America and its deleterious effect upon public discourse. Roe v. Wade is exhibit one in that regard.)

In terms of renewing public engagement in these matters after a reversal of Roe v. Wade, I should close by offering a warning to those of us in the pro-life community. I anticipate that any overturning of Roe v. Wade would be followed explosively by inflammatory rhetoric from “pro-choice” advocates, portraying the result as the death of civil liberties in the United States and the dawn of a moralistic and paternalistic tyranny. Given that support for abortion rights is nearly universal among the cultural elite, especially those who control most of the national news and entertainment media, we should expect a full-throated and extreme reaction that would achieve, for a time, the desired apprehensive response from the general public, with a resultant effect on opinion polling about abortion. During that initial aftermath, a public that understandably is anxious about any significant change in the status quo (that is, a public that is naturally conservative in attitude) would likely be sincerely (if mistakenly) distressed by the judicial removal of a supposed constitutional right. I frequently find that law students, even after completing a course in constitutional law, still fail to appreciate that the overruling of Roe v. Wade would not prevent a single abortion from taking place, but would merely allow the people in the exercise of their democratic rights to consider what is the most appropriate answer in social and moral terms.

If and when Roe v. Wade is overruled, and if the public were to react initially with anxiety as provoked by extreme rhetoric from the cultural elite, those of us who stand for the dignity of all human life should respond firmly but calmly. And we should not be discouraged by temporary trends. Slowly the public will discover that any parade of horribles marched out by the media simply is not being realized, that dictatorship has not emerged, that women are not being rounded up and forcibly removed from public life, that decades of progress in equality between the genders has not been reversed, and that freedom has survived and in fact was never endangered. Because the general public will appreciate that the Supreme Court by overturning Roe v. Wade was taking nothing away but rather was returning a subject of great moral concern to democratic deliberation, allowing the people to chart their own course and create a culture of life.

Greg Sisk