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Which Is It?
My friends in the choice movement keep assuring me that the pro-choice position is overwhelmingly popular, and that it's overwhelmingly important that the Senate Democrats not permit an anti-Roe majority on the Supreme Court. Those propositions can't both be correct, though, right? If pro-choice politics are popular, then a return of the abortion issue to legislative control should be good for pro-choice politicians (i.e., the Democratic Party) and only mildly bad for abortion rights in the medium-term (since purportedly popular pro-choice views would prevail in the congress and state legislatures within a few years once the purportedly unpopular pro-lifers were kicked out). The substantive downside is that it would become impossible to procure an abortion in, say, Texas, though my understanding is that it's already extremely difficult to do so in practice, the procedure's legality notwithstanding. Roe can only be massively important if the policy it embodies is unpopular nationwide, as it was at the time the decision was handed down. Or am I missing something? Genuine question here, not an effort to poke people in the eyes.
November 6, 2004 | Permalink
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Comments
Two points. First, it's worth remembering that because of the many low-population red states, it's perfectly possible for a position to be substantially favored in the country as a whole, but not in a lot of states; so we're not talking just about Texas, but about a whole swath of southern and western states. It's also worth noting that difficult and illegal aren't the same; it may be difficult in Texas now, but it's not illegal, and that will have a real impact on many people's lives.
Secondly, you are asuming that there won't be any national restrictions on abortion, and that it will be handled only at the state level. As Atrios recently noted, this isn't necessarily true. Given the radicalism of the current Republicans, it's by no means out of the question to imagine them making abortion illegal at the national level. Or even if they didn't do that, they might pass other laws -- for instance, making it a crime to help someone go from a state where abortion is illegel to one where it is legal, so that groups couldn't provide bus service to women in Texas (or whereever) to get to where abortions were legal. This wouldn't make abortion illegal in the whole country, but would make the difficult v illegal distinction even sharper than it would be in any event.
Finally, it's worth noting that 'abortion' often serves as a symbol for a whole host of issues about women's place in society; when people worry about Roe, they are often talking about more than just Roe.
SF
Posted by: Stephen Frug | Nov 6, 2004 5:58:12 PM
No, you're not missing anything. Roe itself isn't all that bad, but when you combine it with all the subsequent rulings, which rendered the original trimester scheme a farce, it essentially imposed upon the country a position just short of Singer's extreme. VERY unpopular.
Consequently, about the only people you've got in the pro-abortion movement at the moment are radically pro-abortion extremists, and folks who have a wildly inflated notion of how bad it would get if abortion law were subject to the political process again.
Posted by: Brett Bellmore | Nov 6, 2004 6:01:54 PM
What you're missing is that this is not a level playing field or fair game. The anti-choicers, or pro-lifers as they like to call themselves, are bullies who consistently overstep the bounds of legality. Their intended victims are almost always the poorest most vulnerable members of society, precisely the people least able to effectively lobby in the halls of Congress or prevail in court in a timely way.
Elaborate plots to trip up the anti-choicers in their own inconsistencies won't work any better than expecting the rightwing to reject Bush because of huge budget deficits and the increased danger from terrorism.
Which has something to do with your mistaken idea that Roe was massively unpopular when the decision was announced. In actuality, then as now, most people thought it was the right decision, and it literally took decades for the rightwing to whip up their hysteria about this.
As evidenced by the rightwing's lack of concern about the fact that abortions and complications actually rise in number where their prohibitionist policies rule the roost.
Being clever only works with people who are honest and willing to say "You beat me, fair and square." That is not a description of the American rightwing.
Posted by: serial catowner | Nov 6, 2004 6:05:44 PM
With apologies to Brett Bellmore, a lot of us are aware that the ultimate goal is to outlaw ALL contraception, even condoms, and, frankly, we don't want to pay the social and health costs of such a backward approach.
Readers who get the chance should check out Nelson Algren's story about ding-dong-daddyland, a condom factory in Chicago back in the 50s when condoms were illegal in Chicago. How soon we forget.
Posted by: serial catowner | Nov 6, 2004 6:09:46 PM
If the pro-choice position is popular, blocking anti-abortion judicial nominees seems like a short-term political winner. Maybe we could get longer-term political gains by letting the court overturn Roe and then setting ourselves up as the representatives of the pro-choice majority, but this might not be worth the trouble of letting a bad policy be in effect for a long time.
Posted by: Ethical Werewolf | Nov 6, 2004 6:12:23 PM
Personally I'm pro-choice and anti-Roe. It is a position that can be staked out, but it would cause massive upheaval in the Democratic base. Of course, massive upheaval might be just what we need.
Posted by: Mithras | Nov 6, 2004 6:19:27 PM
With all due respect to you, serial, the ultimate goal of the right to life movment's leadership is as you describe it. Their membership, however, consists mostly of people who have far more modest goals. When you've got the courts blocking laws that prohibit aborting babies who'd live if delivered, you don't have to be much of an extremist to think Right to Life is at least trying to push the ball in the right direction.
Posted by: Brett Bellmore | Nov 6, 2004 6:19:38 PM
It is entirely consistent that the pro-choice position, which enjoys majority support nationwide, requires the efforts of a Senate minority to protect it.
There are two reasons why:
Intensity vs Propensity
Simply put, while more Americans tend to support abortion rights, the issue is not as important, or as mobilizing a force its supports as it is for the anti-choice forces. Which lead us to...
Mobilization, Low Turnout, and the Impact of "Infotainment" Media
The anti-choice forces have a disproportionate opportunity to control Congress and state legislatures not only because of the "intensity of the issue for them, but because in low turnout elections, they can be one of the few mobilized groups. Their power and the sound of their anti-choice fury is amplified by a media infrastructure that rewards conflict and confrontation over civility and enlightened discourse. Unfortunately, the Right is peddling anger and rage, and that apparently is far more compelling entertainment on cable, talk radio, and the Internet.
For more on these topics, see:
"Slippery Slope: Democratic Wavering in the Battle for Reproductive Rights"
"States' Blights: Why the Rights og Gay Couples Can't Be Left to the States"
Posted by: Jon | Nov 6, 2004 6:19:42 PM
That seems true, regarding the states.
Now, Atrios was raging the other day against liberals who question the wisdom or importance of Roe, on the basis that there's no reason why Congress couldn't just pass a nationwide ban on abortion. He's probably right on that narrow point - you could always tie it to the Commerce Clause or what have you. But it seems to me like that would produce the most massive nationwide anti-Republican backlash that you could ever imagine. Which sounds good to me.
Posted by: JP | Nov 6, 2004 6:20:05 PM
I don't think I buy the intensity-of-preference argument, Jon. I know a lot of pro-choice women with pretty intense views. It might seem like they're less intense right now, but that's just because they're sitting on a lead playing defense right now. Pro-life mobilization happened because of the backlash to Roe. A similar overreach by the pro-lifers would likely produce a similar backlash in the opposite direction.
Posted by: JP | Nov 6, 2004 6:23:18 PM
Your flaw here is the assumption that legislative politics are majoritarian. In fact, determined minorities often prevail over diffuse majorities (as I'm sure you know.) Abortion remained legal in the vast majority of states even though these laws were unpopular.
Having said that, overturning Roe would be bad for the Republican Party at the Presidential level. But this doesn't mean that states wouldn't pass abortion legislation, and nor does it mean that a Congress keavily skewed toward Red States because of the malapportioned Senate and H of R gerrmymandering wouldn't pass federal abortion legislation.
Posted by: Scott Lemieux | Nov 6, 2004 6:23:26 PM
Before Roe, the populace was against abortion. A few years after Roe, when the world had not stopped spinning, public opinion shifted in favor of the legality of Roe.
I contend that if Roe were overturned and abortion made illegal, it would not affect the vast majority of Americans and in a few years public opinion would once again shift against abortion as the natural tendency of people is to support the status quo so long as nothing is obviously wrong.
While the majority of Americans profess some sort of preference that abortion be legal, much of that support is weak, while anti-abortion thinkers tend to have strong support for their political stance.
Posted by: Anthony | Nov 6, 2004 6:25:05 PM
Brett--you countinue to assert that decisions subsequent to Roe expanded the right to abortion. This assertion is completely false. Have you ever considered reading Planned Parenthood v. Casey, which upheld all of the abortion regulations under review except one?
Posted by: Scott Lemieux | Nov 6, 2004 6:25:18 PM
Roe is the means.
Getting rid of Griswold is the end.
Because if Griswold goes, they get to run the table.
Any homosexuality, 'deviant' straight sex, sex outside of marriage, the whole nine yards.
All would then fall safely within the police power of the state.
Posted by: Davis X. Machina | Nov 6, 2004 6:40:02 PM
Gee, I thought Roe meant that all women in the US had the right to control their body. Why would giving up a constitutional right be a good thing?
Posted by: Pudentilla | Nov 6, 2004 6:42:06 PM
Roe established a trimester system under which first trimester abortions would be essentially unregulated, second somewhat regulated, and third trimester could be banned except in the case of medical necessity. The subsequent decisions I'm refering to are the ones that defined "medical necessity" to include being upset about not being allowed to get an abortion.
Posted by: Brett Bellmore | Nov 6, 2004 6:46:13 PM
Well, as we just saw in the last election, the fundamentalists are a minority (certainly most people who voted R were not fundamentalists), but a highly dsciplined, motivated minority. They wield political power disproportionate to their numbers. They will be able to push statutes through legslatures regardless of the views of the majority of the public. Don't tell me, for example, that a majority of Texans really thought that heterosexual oral sex ought to be criminal, before the Supreme Court decision in Lawrence.
It's also hard for me to see how a new Supreme Court majority could overrule Roe while leaving Lawrence (sexual prvacy) and Griswold (contraceptives) intact.
Posted by: rea | Nov 6, 2004 6:47:48 PM
The main problem with the overturning of Roe is how it's overturned. If a new hard-core conservative Supreme Court declared that fetuses had constitutional rights, and therefore Roe v Wade is unconstitutionial, it would then NOT allow states to pass laws taking away the rights of fetuses by allowing women to abort them. Therefore, it would be a de facto nationwide ban on abortion.
Posted by: Bender Rodriguez | Nov 6, 2004 6:51:42 PM
Brett Bellmore | November 6, 2004 06:46 PM
>The subsequent decisions I'm refering to are the ones that defined "medical necessity" to include being upset about not being allowed to get an abortion.
I'm sure you have specific decisions in mind. If so, provide at least the captions--we can find the actual opinions on Findlaw. I do have to say that your track record in reporting the holdings of various Supreme Court decisions over the years leaves something to be desired.
Posted by: raj | Nov 6, 2004 6:56:49 PM
Roe is a joke and is completely indefensible as constitutional doctrine. I have no moral objections to abortion, but I think Roe is an abomination. It has nothing to do with a constitutional right for women to control their own bodies. If anyone believed that, we would have a constitutional right to drug use and prostitution. I might support a constitutional doctrine like that (it conforms to my own policy preferences, and it's at least consistent), but singling out abortion for constitutional protection is absurd.
Anyone who thinks that banning abortion would lead to banning other contraception is crazy, and has absolutely no understanding of pro-lifers. There is no chance whatsoever of that ever happening. I'm also pretty confident that national anti-abortion legislation isn't much of a risk. A Supreme Court conservative enough to overrule Roe would be too conservative to allow such an extreme stretch of the commerce clause.
Anthony: You're timeline is a little confused. Public opinion had started to shift toward tolerating abortion for several years before Roe. It wasn't caused by Roe.
Posted by: Xavier | Nov 6, 2004 6:57:38 PM
I doubt you're going to see that, in as much as it would logically require charging abortion patients with murder under existing law, and there's not the political support for it.
More likely by far is that the Supreme court would simply declare that abortion was a medical procedure like any other, with no special constitutional status.
Posted by: Brett Bellmore | Nov 6, 2004 6:59:06 PM
o many people who support the right to abortion do not vote on the issue. This is also why the vast majority of the population supports gun-control yet it's almost impossible to pass reasonable gun-control legislation. it often requires a concerted effort at all levels of government to make representatives follow the public's wishes on such issues.
o state elections get far less attention either from voters or from the media. historically, this has played into the hands of the right who have systematically floated stealth candidates in state and local governments.
o state elections are far more subject to fraud and corruption because of the reduced scrutiny they receive.
all of this has up to now benefitted the right in their determination to see their ideology enforced. of course, in the few recent situations where a state government has taken up a left-wing position (on wetlands, gay rights, death penalty, HMO liability, whatever) the right-wingers at the federal level have thrown states rights straight out the window and imposed their ideology from above.
as others have commented here, the entire program represents an assault on the poor; in many states where abortion is legal, and the majority support some right to abortion, it is virtually impossible for a poor person to get an abortion, and they cannot afford the travel to another state for the purpose. at least one state legislature (I forget which, neighboring Illinois) is considering a law to criminalize helping someone cross into a neighboring state for the purpose of getting an abortion.
state legislatures can also tend to overrepresent rural voters (who are in turn disproportionately right-wing) - witness the ability of rural constituencies to chronically obstruct state spending on public transport that might benefit cities.
leaving this to the states is a way to guarantee that vast numbers of poor people will have their legal right to choose taken away, either by law, intimidation, economic pressure, or a combination.
it is wrong, and politically unsafe, for it to be decided by the Supreme Court, but for the moment it's all we've got and many women's lives depend upon it. in that sense, it is an absolute good.
as to why the majority polling in favor of some right to abortion does not translate into the feasibility of a constitutional amendment protecting it - I don't have an answer for that. Anyone?
Posted by: aa | Nov 6, 2004 6:59:36 PM
I don't believe that most Americans think that fetuses deserve rights at conception. Otherwise, in vitro fertilization would be under attack by the pro-life lobby, and they're staying well away from this issue. (As an aside, I saw an article about the situation in Italy, when IVF clinics now have to live by rules that give rights to the fetus at conception, and this has had a big impact on success rates for IVF.) On the other hand, I think a lot of people are disturbed by late term abortions. So if the right-to-life lobby manages to ban all abortions, and not just late- or even middle-term ones, we may be in for a big backlash.
Posted by: Peter S. | Nov 6, 2004 7:00:59 PM
"Why would giving up a constitutional right be a good thing?"
Matthew probably sees Constitutional Rights as having only instrumental value.
An important question is what kind of judge would it be that would overturn Roe v Wade? Davis above alludes to Griswald (Lawrence? make me laugh), but three or four Scalias and contempt for stare decisis and we are in a world of trouble.
What these people would really like is a return to a very narrow interpretation of the commerce clause. Hell, they'd probably like to gut the 13th and 14th.
Posted by: bob mcmanus | Nov 6, 2004 7:02:45 PM
The problem is that an anti-Roe majority on the court would not declare that abortion is not protected, it would declare that abortion is murder, and therefore illegal. Even if it only declared it not-protected, the federal government could institute a nationwide ban
Posted by: Simon | Nov 6, 2004 7:05:38 PM
