Principled Consistency: The First Casualty of Roe

Greg Weiner is Provost and Vice President for Academic Affairs at Assumption University. He is also a Visiting Scholar at the American Enterprise Institute. He is a regular contributor for The Constitutionalist.

There are no winners in the cultural and political eruption that Texas’ SB 8, which deputizes private citizens to enforce an abortion ban in exchange for bounties, has set off. Not civil society, which cannot bear the weight of pitting citizens against one another to do the state’s work. Not the Supreme Court, which fell for an elaborate but obvious procedural trap the Texas Legislature sprang in broad daylight. And certainly not constitutional consistency—the idea that policy preferences should not drive constitutional principles.

Advocates of Roe v. Wade who have suddenly discovered the Supreme Court is too powerful apparently hope no one remembers—or perhaps they do not recognize themselves—that Roe was one of the most culturally and politically disruptive judicial power grabs of the last half century.

Their claim that Roe is settled law is demonstrably false. It has never been settled either politically or legally. As Ruth Bader Ginsburg once noted, Roe substantially created the pro-life movement, one of most powerful forces in politics since. The case has been relitigated from the day it was decided.

Meanwhile, the pro-choice embrace of stare decisis is situational. Much like Hannah Arendt’s revolutionary—who discovers conservatism the moment the revolution concludes—those who had no problem with the Roe court jettisoning decades of understanding that the regulation of abortion was a state matter to be resolved by local values became converts to judicial restraint to consolidate their gains.

On the other side, conservatives who claim to value the preservation of civil society against political encroachment have now all but merged the two, not only encouraging citizens to report one another but paying them off to do the state’s own work. If it stands, this brutal rupturing of the civic fabric will be SB 8’s legacy as much as the law’s impact on Roe. Perhaps Democrats can answer by deputing citizens to sue each other for driving gas-guzzling, carbon-emitting SUVs. Moreover, many of these same conservatives condemned Roe as overreaching but now use the civil courts as forums for private enforcement of state policy.

All these crooked paths radiate outward from one central point: Roe’s hubristic attempt to substitute the judgment of seven Supreme Court justices for a country of tens of millions of people who dare to differ on an issue to which all sides impute moral significance. Ending Roe, and opening the way to ordinary legislative politics, is the only way out. That is true for several reasons.

First, overturning Roe would obviate the need for turning citizens against one another. The reason Texas deputized private citizens was not to avoid enforcing the law. The Texas Legislature would be pleased to impose an abortion ban directly. The only purpose of SB 8’s vigilante mechanism, the trap for which the Court fell, was to escape judicial review. As Chief Justice John Roberts said in dissent, Texas argued that states “cannot be restrained from enforcing their rules because they do not enforce them in the first place.” Yet that move was necessary because Roe forbade Texas legislators from legislating their constituents’ values directly.

Second, ending Roe would end the political theater that surrounds conversations about abortion in the United States—the ones in which pro-choice and pro-life advocates push their positions ever farther to their extremes, until any abortion must be either permissible or outlawed at any time and under all circumstances.

By contrast, the vast majority of Americans sensibly combine moral convictions with attention to nuance and circumstance. Many of the most committed pro-life and pro-choice advocates understand they live in a country populated by people who disagree with them. Roe relieves them of the messy responsibility of dealing with each other.

It is often said that unrestricted abortion is morally coarsening or that total abortion bans are overtly tyrannical. What is most coarsening and tyrannical is Roe’s effective claim that moral complexities around the issue are impermissible arguments in civic debate. The Roe regime discourages moral seriousness by allowing all parties to the dispute to grandstand at the farther reaches of the abortion debate, knowing either that the judiciary will not permit their schemes or that voters, denied the opportunity to resolve the issue subtly, will prefer one extreme to another.

This enables both a corrosive lack of accountability evident in many state abortion bans designed to provoke the Court as well as in many pro-choice laws setting the opposite policy but similarly oriented toward the justices. It demonstrates Edmund Burke’s warning against legislating for the ordinary case on the basis of the extreme case: Because some abortion might be necessary, pro-choice activists say, all abortions must be permitted; because abortion might be too readily resorted to, the other side avers, all must be banned.

Third, in the absence of Roe, pro-choice and pro-life advocates would have to get back in, or develop, the habit of persuasion and moderation. If citizens are actually allowed to legislate the subtleties of their values, the odds that many states will fix the issue at either extreme are low. As Mary Ann Glendon has noted, accommodations—such as declining access to abortion as pregnancy proceeds, combined with rising support for child-rearing—are possible. But judicial usurpation discourages moderation. Winners have no reason to compromise. Losers never experience the satisfaction or at least resignation of losing a fair fight.

Fourth, ending Roe might trigger electoral realignments by obviating the need to vote substantially or primarily on the basis of either judicial nominations or the single issue of abortion. There are surely many pro-life voters who would otherwise sympathize with liberal values. Similarly, there are opponents of total abortion bans who might vote Republican if the question was resolved through accommodation.

The courts distort electoral alignments by decreeing the political resolution of morally potent issues. If Democrats can always count on the support of people who do not want abortion to be completely outlawed, and Republicans know those who do not want abortion always to be permitted are reliable voters, neither side has to appeal to these groups on other issues. An accommodation on abortion, which many European countries have managed, would allow realignments that might force both parties to moderate on a range of questions.

Finally, overruling Roe could encourage constitutional seriousness. That is not to say Roe does not have serious advocates. But few of them can articulate a principle according to which the Constitution protects this unarticulated right but not others claimed by their opponents. There is a fiction—or, for its advocates, a noble lie—at the heart of Roe: that the Constitution can be reasonably construed to resolve the question of abortion. Justice Harry Blackmun’s opinion in the case was almost devoid of serious constitutional argumentation, an embarrassment over which some of his brother justices reportedly fretted.

It cannot be healthy for major issues in a republic to come down to the judgment of five Supreme Court justices as opposed to the subtleties and compromises necessary when legislating for scores of millions of voters. Aristotle would recognize the propensity of the few to error and of the many, properly situated, to an aggregate and sensible stability. Lord Acton, among others, would add that a small group of officials wielding so much power is prone to arrogance and abuse. If that is true in 2021, it was also true in 1973. One sign of constitutional seriousness would be treating the two cases as similar. But seriousness and consistency have been among the foremost casualties of Roe.

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