NRPLUS MEMBER ARTICLE F orty-seven years ago, seven men handed down a judicial decision manufacturing a constitutional right to abortion, a ruling critiqued even by liberal scholars who support its outcome. Roe v. Wade not only overrode the contemporaneous public debate but also robbed voters of the ability to express their will through elections and the legislative action of their representatives.
But today, abortion proponents defend the Supreme Court’s undemocratic decision using pro-democracy arguments. Progressive politicians, along with NARAL Pro-Choice America and Planned Parenthood, routinely cite the statistic that seven in ten Americans oppose overturning Roe.
Set aside the fact that only a slim majority of Americans even knows Roe has to do with abortion, let alone knows the specifics of how the decision shaped policy. Do they see no contradiction in hawking public-opinion polls to bolster a case that removed power from the hands of the people?
Pressed to defend their case for killing the innocent, abortion-rights supporters tend to avoid the question and instead insist that Roe v. Wade is “the law of the land.” This slogan, devoid of any legal or moral argument, sums up Roe perfectly; the game is fiat, not consent. “Asking the Supreme Court to reconsider overturning Roe is an assault on our basic rights, plain and simple,” the acting president of Planned Parenthood tweeted recently, criticizing an anti-Roe amicus curiae brief.
As is typical, the president’s statement isn’t a defense of either Roe or abortion; it’s question-begging. If you believe that Roe protects an inherent fundamental right, of course overturning it would constitute an assault. But this is the very point in contention, and the case for the status quo is extraordinarily weak. When states pass laws that cannot stand under the framework of Roe, they intentionally challenge the Court’s jurisprudence on the grounds that abortion is not a constitutional right at all. To respond with “things must stay as they are” is no rejoinder whatsoever.
It is only in the case of abortion that Democrats so respect precedent. Those who insist it is unthinkable to question the outcome in Roe are the very same progressive voices who demand the overturning of decisions in Heller and Citizens United. Stare decisis for me, but not for thee. For obvious reasons, they make little mention of Dred Scott and Plessy v. Ferguson.
When it comes to Roe, Democrats ignore every principle save one: Women have the right to access abortion, for any reason, at any stage of pregnancy. And this is the policy landscape that Roe and its companion case Doe v. Bolton created, though few realize it.
Last year, New York passed legislation permitting abortion until birth. Vermont and other states passed similar laws deeming abortion a fundamental right. Those laws were signed by governors and took effect as prescribed.
But when states across the country attempt to curtail abortion in any capacity — whether with strict limitations like heartbeat bills or looser laws like parental-notification requirements — those laws are immediately struck down by courts. Louisiana is being forced to defend one such law at the Supreme Court this term, perfectly reasonable health-and-safety legislation that requires abortionists to have admitting privileges at local hospitals, the same as any other doctor who performs surgeries.
Despite the claim that most Americans accept Roe, more-detailed polls suggest that they do not. Gallup surveys, for instance, have consistently found that an overwhelming majority of Americans opposes abortion in the last three months of pregnancy. But the maternal-health exception in Doe makes it impossible to limit abortion in any meaningful way, even after fetal viability.
U.S. jurisprudence, then, has made it impossible for any but the bluest states to enact the will of the people on abortion. Though Justice Harry Blackmun, author of the majority opinion in Roe, intended his decision to end public debate, the ruling has had the opposite effect. Far from being “settled law,” Roe cemented abortion as the most controversial question in American life. Last year, a record number of states attempted to pass laws regulating abortion in some capacity, even as courts prevented nearly all of them from taking effect.
Whether they are pro-life or simply less pro-abortion than the Democratic party, most Americans oppose Roe’s legacy. This is why abortion-rights proponents have amped up their rhetoric and activism during Trump’s presidency, afraid that his judges might undo cases fabricating the supposed right they hold so dear.
Without the force of the courts, the Left’s abortion regime wouldn’t exist, and the most likely result of its abolition would be laws far more restrictive than anything Roe permits.