Roe decision was always a house of cards — abortion must be up to the people


After 49 years of legal arguments, protests and political battles over the composition of the Supreme Court, the court has finally overturned Roe v. Wade.

No matter how you feel about abortion, this should be welcomed as a healthy development for American democracy and for the rule of written law made by the people’s representatives. Roe was a legal mistake that played a large role in driving our national politics crazy. Now the democratic process gets to decide what happens to abortion.

Before Roe, nearly every state in the Union banned or restricted abortion, but the trend was toward allowing abortion in more situations. That trend, here and abroad, tracked the liberalizing of divorce laws and other features of the sexual revolution of the 1960s and 1970s. Roe stopped all that in its tracks, high-handedly sweeping off the books the laws of nearly every state at once. (New York’s law, the nation’s most permissive, allowed abortions up to 24 weeks.)

The Supreme Court’s job is to read the law, not write it. Nothing in the Constitution mentions abortion even indirectly, and nobody before the 1970s thought the Constitution made abortion legal. At the time, even pro-abortion legal scholars thought Roe was shoddy. Its trimester framework reads more like a piece of legislation than like judicial reasoning, yet it foreclosed the democratic process from the kinds of compromises and changes over time that usually go into popularly enacted laws.

Roe v Wade protesters
Pro-choice demonstrators outside the Supreme Court.
AP

The undemocratic nature of Roe produced a backlash that left the pro-life movement in politics much stronger than it had been in 1973. It revolutionized how political conservatives thought about constitutional law. It mobilized opposing factions in national elections, polarized along religious and cultural lines. It turned Supreme Court nominations into a circus. It occasionally triggered violence.

All the energy that usually goes into politics and lawmaking in Congress and state legislatures was forced into an all-or-nothing national battle for the Supreme Court that lasted decades.


Get The Post’s latest updates following the Supreme Court’s decision to overturn Roe v. Wade.


When presidential candidates such as Donald Trump or Bill Clinton misbehaved, their supporters insisted that the stakes of every presidential election were too high for dissent, because Roe was always on the national ballot.

That isn’t healthy. In America, the people are supposed to make the law. Now they can. People in different parts of the country are free to disagree again. Some states, such as New York, are strongly pro-choice and will continue to allow legal abortion. Some, such as Mississippi, are strongly pro-life and will ban or severely restrict it.

Some will, like many European countries, ban abortions after some point in a pregnancy while permitting early abortions. Some will have referenda that put the question to the voters directly this November, or in elections coming soon. Congress will decide what the federal government will and won’t pay for. Maybe we will eventually have a national law on abortion, or even a constitutional amendment — but only if there is a powerful enough national consensus to pass one.

On that, too, the people will ­decide.



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