WP editorial writer Benjamin Wittes argues
in The Atlantic Monthly
that liberals and the Democratic Party should let Roe v. Wade
fall: "In short, Roe
puts liberals in the position of defending a lousy opinion that disenfranchised millions of conservatives on an issue about which they care deeply while freeing those conservatives from any obligation to articulate a responsible policy that might command majority support."
The heart of Wittes' argument is that liberals have taken the abortion question entirely out of the legislative arena, an arena in which public opinion is on their side. This needlessly provokes conservatives who feel, quite rightly, shut out of the decision. In addition, since the issue will never actually face a vote, "conservative politicians are free to cater to pro-lifers by proposing policies that, if actually implemented, would render these politicians quite unpopular."
I both agree and disagree with Wittes. To explain I'll be forced to write some things that would land me in hot water if I mentioned them out loud to my friends at the Hawk 'n' Dove on a Friday night.
First of all, I agree
with Wittes that Roe
is, legally, a bad decision, a notion that came to me as I studied the decision in my college constitutional interpretation class. Read it and decide for yourself.
It is quite embarrassing for smart legal scholars to have to stand behind this. Or even not-so-smart con interp students. I also agree
that keeping the question in the judicial arena gives conservative politicians ammunition to rally their troops, argue about "activist judges," and make wild pronouncements that they could never back up on the Senate or House floor.
The place where I disagree
with the Wittes argument is in its predictions about what would happen if Roe were overturned and the abortion question were placed in the legislative arena. So, Wittes claims that "public opinion is in [our] favor," citing polls that show that "80 percent of respondents have consistently favored either legal abortion in all circumstances (21 to 34 percent) or legal abortion under some circumstances (48 to 61 percent)." Because of this popular support for legal abortion, conservative politicians would be forced to compromise with liberal politicians and come up with a reasonable abortion policy that could command majority support.
Couple of problems here. First of all, we have this thing called the filibuster, and believe me, if abortion ever comes to a federal level vote the ultra-religious right is going to roll out everthing it has to make that happen. Certainly, pro-choice champions in Congress will fight hard, and we would definitely pick up some moderate conservatives who get pressure from their districts, but it's no sure thing by any stretch.
Second, the type of compromise legislation that might get passed federally--not to mention what certain states might come up with--would probably still be less than what most pro-choicers want to see, especially since it would undoubtedly leave the most vulnerable among us at risk. Legal barriers like parental notification laws, etc. etc. typically do not affect affluent and geographically mobile twenty- or thirty-somethings. They affect underprivileged girls and women. Ultimately, these are the people we are fighting for, more than just ourselves. Pro-life conservatives may imagine urban, underchurched barhoppers like me when they think of they type of person who might get an abortion to end an unwanted pregnancy. They should
be imagining their teenage daughters or the women living in low- income housing down the street who simply can't afford to raise another child.
What we need is a Constitutional amendment. Until we're in a place as a nation where that's possible, we may have to hold our noses and defend Roe.