Right to Choose; Right to Life. Again.

The big deal in Washington on Wednesday, in addition to Covid, was the Supreme Court argument in Dobbs v. Jackson Women’s Health Organization, the case involving the Mississippi law generally prohibiting abortion after fifteen weeks.  Among others things, the question in the case is whether Roe v. Wade (1973), along with Planned Parenthood v. Casey (1992), should be overturned.

I had several thoughts.  I’m going to just list them, maybe not in the right order, but as I think of them.

1. First, I think Roe v. Wade is a poor decision from a legal reasoning point of view. The Court created the three-trimester test out of thin air. It didn’t really justify it; it just stated it.  Without commenting on whether abortion ought to be legal, Roe v. Wade is just poorly done.

2. Second, even if Roe v. Wade is poorly reasoned, etc., what do you do with it 48 years after it was decided? Some argue that, at some point, decisions gain precedential value. We don’t want the Supreme Court going around willy-nilly overturning decisions that people have relied on for almost five decades.  On the other hand, if the Supreme Court gets a decision wrong, shouldn’t it overturn it?  Plessy v. Ferguson was 58 years old when the Supreme Court – fortunately and correctly – overturned it in 1954.

Forty-four years ago I wrote an article about why the Equal Rights Amendment shouldn’t be adopted. I wasn’t opposed to the ERA because I opposed equal rights. I was opposed to it because I didn’t think the courts were the right place to make the decisions on what equal rights means.  I’m not going to restate my arguments here.  You can read the article here.  (I think it has held up pretty well.)

        The ERA wound up not passing, but we largely got equal rights.  Laws were passed, regulations were adopted, and people’s views changed.  Things aren’t perfect, but they are a lot better than they were in 1977.  And, unlike the situation with abortion, it was done with a lot less controversy – because, instead of just one extreme shouting at the other extreme, people were able to work with other people in the middle to actually agree on things. 

4. Three years ago, I wrote this about what I thought would happen if Roe v. Wade was overturned:

“[V]iews on abortion are divided among four groups: (i) those who oppose a woman’s right to choose under virtually any circumstances; (ii) those who want abortion available virtually without restriction; (iii) those who would allow it in some situations; and (iv) those who allow it in many circumstances. 

With the courts making the decisions about a woman’s right to choose, the fight has mostly been between those in group (i) and those in group (ii); i.e., between those with the more extreme views.  If we let our legislatures and people decide, which is what would happen if Roe v. Wade were overturned, what you would relatively quickly find is that, instead of the debate being between groups (i) and (ii), it would be between and among those in groups (iii) and (iv).  Instead of the argument being between those who absolutely oppose abortion and those who absolutely approve it, the argument would be between those in the middle, those who support a woman’s right to choose, but with some restrictions.  The discussion would be over what the restrictions should be, not whether the right should exist.”

5. I’m not as confident today, as I was three years ago, that if Roe v. Wade is overturned, we will “relatively quickly find” people in groups (ii) and (iii) coming together to reach a reasonable middle ground on abortion   Things are so much more polarized today than even three years ago that I am afraid we might find groups (i) and (iv) not only dominating the initial reaction to such a decision, but also dominating the discussion for a much longer time than I thought back then.  Instead of trying to reach an agreement, the people in the middle might just give up, tune out, and turn off (which I would understand).  Life is too short for the bitterness and nastiness on both sides of the political spectrum today.

6. So, what should the Supreme Court do?  I’m not sure.  I would like to see abortion become a question where reasonable people in the middle could come up with a policy that most people would support.  That probably means getting the Supreme Court out of answering the question.  But how we do that, given where we are today, is a question I don’t have a good answer to.