Ditch Roe to Save Roe? Two Abortion Advocates Debate Whether Roe Is Bad for Their Movement
BY Daniel Avila

A fascinating online debate between abortion supporters Sanford Levinson and Jack M. Balkin pondered recently whether Roe v. Wade has lost its utility as the linchpin of abortion rights.

Using the online "debate club" at legalaffairs.org as the forum, Levinson, professor of government at the University of Texas at Austin, argued that Roe "is the gift that keeps on giving" to political conservatives.

He lamented that Roe "has served to send many good, decent, committed largely (though certainly not exclusively) working class voters into the arms" of the Republican Party. He posited that "the best thing that could happen to the Democratic Party is the overruling of Roe and the full 'politicization' of abortion."

Levinson concluded that "there is every reason to believe that the Democrats could prevail in a national contest if the alternative is the criminalization of abortion. The Democrats don't need Roe; the Republicans do!"

Though true about Roe's effect on the working class, Levinson's remarks about party politics miss the mark. Polls consistently show that the public overwhelmingly rejects abortion on demand. Whichever party best demonstrates a commitment to loving both the unborn child and the woman will benefit most from whatever political advantage there is to be gained.

Nonetheless, Levinson touched on an important reality. Any party that insists on defending Roe will continue to suffer from a political disadvantage.

Yale Law professor Jack M. Balkin is the editor of What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision. He was equally troubled by the burden that defending Roe has placed on political liberals, but rather than inviting Roe to be overturned, for example, by withdrawing opposition to confirming anti-Roe judges, he advised that the abortion ruling be left alone while at the same time making it irrelevant. That would be accomplished, he argued, by working even harder to pass the Freedom of Choice Act, codifying an absolute right to abortion.

In effect conceding that Roe was a judicial act of raw power that bypassed the people, Balkin argued that "by putting a Freedom of Choice Act squarely on the political agenda, even if it cannot pass today, Democrats would be urging a solution to the abortion question in the political process, not the courts." If instead Roe is abandoned rather than propped up legislatively, then "it would become the canonical example of how one shouldn't decide constitutional cases."

Moreover, ditching Roe would stigmatize it as another Dred Scott (which rejected the claim that blacks are citizens) or Plessy v. Ferguson (which endorsed racial segregation), two court decisions "that law professors teach their students were wrong, perhaps even 'wrong the day they were decided.'" In turn, Roe's demise would threaten all the other recent court decisions that took a similar constitutional approach concerning "the matrix of concerns at the heart of the progressive agenda," Balkin warned.

Levinson replied that keeping Roe around, even just as window dressing, would continue to polarize judicial confirmations and also would reinforce wrongly the idea that one side of the hotly debated abortion issue must be squelched.

He admitted that "there are some issues where I'm more than willing to say, in effect, 'Shut up. You're a bigot and that's all there is to it. You shouldn't expect to be able to articulate your views, and even potentially win, in the ordinary political marketplace, because they have been taken off the political table by the Constitution.' But I find it difficult to say this to people I regard as on 'the other side' of the abortion issue. To constitutionalize this issue [by judicial dictate] is, in a real sense, to treat [the other side] with disrespect[.]"

There are other illuminating observations, such as the acknowledgment by both professors that a constitutional issue is only settled when one side gives up.

As noted by Levinson and Balkin, the so-called constitutional right to abortion was never instituted or adopted by the people, and thus its political legitimacy continues to be questioned. Roe never truly will be constitutional "law" because the "right" it produced came only from the imagination of unelected judges, and it never fully will be "settled" law as long as the pro-life movement refuses to give up.

Roe v. Wade is an embarrassment to all but the most radical of abortion supporters. Gauging from the debate between Levinson and Balkin, it is becoming an increasingly insecure foundation of the abortion movement itself.

Daniel Avila is the associate director for policy and research of the Massachusetts Catholic Conference.