The Washington Post published a poll this morning showing that a significant majority of Americans support Roe v. Wade and do not think the Supreme Court should overturn it. That says something about the intrinsic tensions of rights talk at the Court. If broad majorities support access to abortion, there is no reason for the Supreme Court to intervene. Those majorities would be reflected in legislation. The truth, of course, is more complicated: Public opinion varies notably by state.
More important, the stark choices the poll offers–which distill to whether abortion should be legal or illegal–do not pick up the nuances of whether Americans would support, for example, European-style regimes of restrictions that tighten as pregnancy proceeds. The holding in Roe prohibits the kinds of compromises that would likely resolve the issue to a reasonable degree of acceptance. That could go a long way toward freeing Americans who oppose abortion to vote based on a variety of other issues. When the Court freezes the public’s ability to resolve disagreements on intense issues, it encourages polarization.
For half a century commentators left and right have said that Roe interrupted a process of democratic settlement on abortion. Yet upwards of 60% of the nation’s population supports the settlement attempted in Casey, and the pro-life forces fight as hard as ever. No surprise there: Folks who believe that abortion at any stage is infanticide can’t compromise and shouldn’t compromise.
Overruling Roe and Casey is most unlikely to be a principled decision. In fact, believers among us should fall on our knees and pray hard that it isn’t a principled decision. A principled overruling of these cases would repudiate the principle that they represent: liberty as privacy. That’s the principle that gave us the line of decisions that began with Meyer v. Nebraska and Pierce v. Society of Sisters. That same principle gave us Everson v. Bd. of Ed.
But maybe overruling Everson is really what’s afoot. Afterall, “the Constitution says absolutely nothing about” a freedom from religious establishments against Mississippi or any other state. Overruling Roe and Casey would be overruling Everson in fact, whatever the legalistic gloss, for everyone knows what motivates the opposition to Roe and Casey.
Here we are, then, escorted to the brink, by a Court of dubious legitimacy.