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7/28/00 1:45 p.m.
Civic Miseducation
Roe v. Wade makes us stupid.

By Matthew Feeney, a Washington writer

poll published in Tuesday's New York Times summarizes how voters view the Presidential candidates on major policy issues. According to the Times, "Sixty-two percent said Mr. Gore would probably pick Supreme Court justices who would vote to keep abortion legal; 43 percent said Mr. Bush would be unlikely to do so." The reference, whether or not the survey respondents fully understood it, is to the legal fate of Roe v. Wade. Of course, future Supreme Court justices will have neither the power nor the opportunity to "vote to keep abortion legal." They might vote on whether it remains legally untouchable, and after that it would be kept legal in much of the country without their help.

Judicial politics is complicated, so confusions like this arise naturally. But public understanding of Roe v. Wade is virtually defined by confusion. I've had many discussions over the years with educated, intelligent women whose politics were defined above all by their pro-choice convictions. All were committed supporters of Roe v. Wade, and almost none of them knew anything about it. This ignorance reflects the political treatment of abortion by the Democratic Party and the pro-choice movement.

It's not just that the Democrats and pro-choice activists exhibit ignorance about Roe. Rather, they cultivate it. The Democratic guardianship of Roe is like the Monty Python sketch about an apartment high-rise erected by a magician. If unquestioning belief in its soundness is not enforced, it will collapse. This makes for good comedy, but bad civic education.

The fact that, through Roe, the arcane world of constitutional law persistently intrudes upon more simple-minded public political debate could conceivably be a good thing. Recall how, during the Bork confirmation hearings, front-page articles dwelt on competing approaches to constitutional interpretation. It was, ultimately, a sorry political spectacle, but it was also a rare episode of televised civic education on a difficult and important topic. Bork's intellectual gravity, and his unusually well-defined interpretive philosophy, forced hostile politicians to address the theoretical underpinnings of his positions, and even to venture their own. When Bork backtracked on certain issues, the press were quick to point out the contradiction between his avowed principles of textual interpretation and the positions he was now claiming. When was the last time you saw something like that on the CBS Evening News?

The effect of Roe is quite different. The intensity with which both sides hold their respective views on abortion makes it easy for the casual spectator to assume that Roe is contestable mainly on political grounds: pro-choice equals pro-Roe. Rarely mentioned is that most scholars who think that constitutional interpretation should have at least something to do with the Constitution have serious doubts about Roe. In fact, many unimpeachably liberal scholars, who are duly pro-choice in their politics, think that Roe is a crock.

Harry Blackmun's Roe opinion is notorious for two main reasons. The first is his reliance on the constitutional right to privacy as it was conceived in Griswold v. Connecticut (1964), a decision overturning a state law against dispensing contraceptives. If, by "constitutional," you mean "in the Constitution," there is no constitutional right to privacy. The Court found this right not in the text, but in "penumbras, formed by emanations" from the First, Third, Fourth, Fifth and Ninth Amendments. The Fourteenth Amendment Due Process Clause, apparently, incorporates not only the specific articles of the Bill of Rights for application to the states, but also their penumbras, emanations, auras, gaseous emissions, energy fields, ink smudges, etc.

The dissents to Griswold carry two wonderfully succinct expressions of the type of judicial scruples that both Griswold and Roe violate. The great liberal Justice Hugo Black wrote, "I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision." Potter Stewart added, "I think this is an uncommonly silly law....But we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do." When was the last time you heard a pro-choice activist concede these obvious points?

The second main reason for Roe's poor reputation is that, in his opinion, Blackmun takes a surprising detour through the history of abortion and infanticide in order to determine Texas's "purposes and interests behind [its] criminal abortion laws." His main point in this account is that abortion and infanticide have not always and everywhere been viewed as morally objectionable. True. Interesting, even. But utterly beside the point in a Supreme Court opinion. The evolution of moral standards is something for legislators to register. Blackmun's job was to interpret the Constitution. Even scholars who reject strict construction and original intent find Blackmun's historical interlude bizarre and damning.

And so Roe v. Wade has become the red-headed stepchild of liberal jurisprudence, an undisputed member of the family of important liberal decisions, but a clumsy, homely, and, frankly, embarrassing one. Few politically relevant, still-standing decisions enjoy less intellectual respectability. But you'd never know it from the Democratic Party's abortion politics.

Last spring, in a rare attempt to address the scholarly side of a political issue, George W. Bush called the Roe decision "a reach." Given the things that might be said about Roe, this almost qualifies as a compliment, but it was enough to provoke a full bout of hyperventilating from the Gore campaign. Bush, it said, was "pander[ing] to anti-choice extremists." Thus, the treatment of Roe by Democrats and the pro-choice movement not only neglects curiosity about Roe. It actively smothers it. Roe's underlying principles and its methodology are so flawed that its defenders m

ust deflect questions about its intellectual soundness by resorting to one of two pretenses. Each one is disastrous from the standpoint of civic education. The first is doltish and philistine: Underlying principles and methodology aren't really interesting; it's better to focus on consequences. The second is merely cynical: There's no such thing as an underlying principle, or methodological consistency; constitutional interpretation is just politics.

As long as Roe v. Wade dominates abortion politics, and as long as the Democratic party yokes itself to this notoriously incoherent and activist decision, the message that Democratic abortion politics conveys about the Supreme Court will shift between shallowness and cynicism. It would be interesting to see which of these the famously smart and idealistic Democratic nominee is willing to embrace.

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