January 23, 2006,
On the thirty-third anniversary of Roe v. Wade, the decision seems simultaneously to have become more sacrosanct than ever, and more imperiled than ever. It is supposedly well-settled as a matter of law. Even some former opponents of the decision believe that it has survived for so long that it should not be overruled. The op-ed pages are full of liberals who allow that Roe was never a well-reasoned inference from the Constitution, but say it's too late to let it go.
And polls find the decision to be popular, so it seems to be protected by both legal and political fortifications. Yet we are constantly warned that the president is chipping, chipping away at Roe, and that each of his Supreme Court appointments could be the last vote to overturn it.
There are ways of resolving the apparent contradiction. Maybe the explanation is that conservative Republicans are radicals, attempting to unsettle what's settled and zealous enough that they might just succeed. Or it could be that pro-abortion groups are crying wolf about the danger to Roe: Surely each nominee to the Supreme Court can't be the deciding vote against it. (Given the mercy an end to Roe would show to the unborn, perhaps "crying lamb" would be a more appropriate phrase?)
But we think that the best explanation is that Roe's apparent strength is largely illusory. Take those polls. Do they really mean that 66 percent of the public (to use the figure from a December NBC/Wall Street Journal poll) don't want the Supreme Court to allow state legislatures to be able to prohibit third-trimester abortions? Surely not: Polls find that even larger majorities want such prohibitions. Many people believe, wrongly, that Roe protects only first-trimester abortions, a misimpression that most polls (including the NBC/Journal poll) go out of their way to foster. Many people also believe, wrongly, that overturning Roe would automatically lead to a national ban on all abortions. What polls on Roe really measure is public opposition to an immediate national ban.
The relevance of these polls to actual political behavior is tenuous. The public's support for Roe does not even translate into opposition to the confirmation of Supreme Court nominees who might vote against it as public support for John Roberts and Samuel Alito makes clear.
Nor is Roe all that well-settled a precedent, which is perhaps what occasions all the somewhat nervous claims that it is. The last time the Court really reconsidered the issue, in a 1992 case called Casey, it junked the trimester scheme that popular imagination and pollsters still consider central to Roe. When the Court considered the biggest abortion-related controversy of the last decade, in its 2000 decision on partial-birth abortion, the authors of Casey could not agree about what Casey meant.
In the partial-birth decision, the Court threw out laws in part because they could (supposedly) sometimes be applied in unconstitutional ways. In its Ayotte decision last week, it unanimously suggested that the possibility of unconstitutional applications was not a good enough reason to throw out an abortion law. State legislators cannot be blamed for not being able to figure out what regulations constitute an "undue burden" on the right to abortion, and thus will be struck down by the Supreme Court, because the undue-burden standard depends on the subjective feelings of the judges.
The Court would be perfectly justified in concluding that its attempts to micromanage abortion policy have failed, in regarding this failure as an indictment of its pretensions to have any special expertise or authority to do so, and in scrapping Roe. In Casey, the Court argued that many people have relied on the availability of abortion in the event of contraceptive failure, and that this fact was a reason to continue to protect a right to abortion. But legislatures are perfectly capable of deciding what weight to give to that fact.
The justices may prefer to move incrementally. They may decide, when they again rule on partial-birth abortion later this year, to rule narrowly: to cede just enough legislative authority back to legislatures to let them prohibit partial-birth abortion. Little by little, they might restore democracy in this area.
Roe's twin fortifications are there to protect each other's weaknesses. The alleged popular ratification of Roe is invoked to cover its legal implausibility. But a truly populist constitutional law would allow prohibitions on late-term abortions and substantial restrictions on early-term abortions, so the majesty of the law and the authority of the court have to be invoked against this threat. The only way to keep the game going is through sleights of hand, diversions, and illusions: Roe creates only a limited right to abortion; everyone loves Roe; it is settled law; repeat as necessary.
The pro-abortion activists are right to be alarmed.