Oral arguments this week in Dobbs v. Jackson Women’s Health Organization point the way to a possible reversal of Roe v. Wade. I’m not some great Supreme Court handicapper, but this appears to be a widely held view, and it accords with the view of the experts I have consulted.
Roe, like so many Warren- and Burger-era court precedents, is embarrassing. While many have become attached to the result, and fights over it have been an important faultline between cultural conservatives and the sexual revolutionaries of the 1960s, the reasoning in the case is completely shoddy and results-based. It’s a joke. What policy preference could not be divined from this amorphous concept of extratextual constitutional privacy?
As anyone who reads the Constitution can see, it has nothing to say about abortion (along with much else) and the only way to obtain the Roe precedent is to build on the shaky foundation of other decisions that invented an abstract, fill-in-the-blank “right of privacy” only a few years earlier.
Roe’s foundation in privacy and bodily autonomy is particularly galling, in light of the recent wholesale disregard for privacy and bodily autonomy when the lives of the unborn are not implicated, as in the contemporary politics of vaccine mandates and the national security state’s panopticon.
For decades, Republicans officially opposed abortion and opposed Roe, favored greater state restrictions on abortion, and even advocated a human life amendment to the Constitution. Most also made exceptions for certain extreme cases, such as rape, incest, or a threat to the life of the mother. This position was rooted in a moral stand: one favoring life and rejecting a concept of freedom that permits one person to destroy another.
I haven’t written much about abortion, because the logic of the moral position always made a lot of sense to me, and it does not even require traditional Christian beliefs to endorse, even though it is consistent with and mandated by such beliefs. There is also a question of where to spend one’s rhetorical energy. People are generally unmovable on this issue, more attached to their conclusions than their premises.
The usual consequentialist arguments in favor of abortion amount to something like this: the visible should have priority over the invisible, the large and fully grown should be able to dominate the small and developing, the present is more important than the future, and the convenience of young women should trump the right to life of the unborn. In other words, most defenses of abortion involve some combination of willful blindness, crude materialism, and glorified selfishness.
Opposition to abortion made sense as part of the Republican Party’s broad stance against the social revolution of the 1960s. Life had changed quickly, and many of those changes were not popular and lacked any pedigree in democratic decision-making.
The cultural conservatives’ resistance was founded in hoary moral truths that had been dismissed and disregarded in the frothy atmosphere of the 1960s, without having been refuted. While free-market economics and other hard-nosed policy positions were a central part of Republican Party politics, opposition to abortion and the Roe precedent tapped into deeper roots that went beyond our material welfare, including the natural law tradition that rejected chattel slavery.
Reflecting the concerns of their voters, many a GOP mailer, primary campaign, and television advertisement was rooted in opposition to abortion. Ronald Reagan authored a monograph opposing abortion on the 10th anniversary of Roe v. Wade. George W. Bush said, “I will do everything in my power to restrict abortion.” Fueled by opposition to abortion and the other anti-democratic rulings of the Warren era, taking back the Court became a unifying conservative goal in the 1980s
As with much else, Donald Trump exposed how cynical and fake so many Republicans were. Taking pro-life rhetoric seriously, he didn’t see why women seeking abortions should be exempt from punishment. This left many in the institutionalized pro-life movement aghast, but, while abortionists may have greater culpability, it is not obvious why such law-breaking on the part of abortion seekers in a hypothetical abortion ban should go unpunished.
More important, if Trump were defeated in the name of decorum, institutions, and “Our Democracy™” as so many in Conservatism, Inc. had wanted, Roe and its prohibition on local and state controls of abortion would now be safe from challenge. Their stand for “principle” would mean, even under their own terms, millions of more abortions, while further solidifying the Supreme Court’s power grab against states and localities.
Political principles can never be so indifferent to results.
One must now wonder how many of these Republicans meant what they said over the last few decades. After all, it is easy to be against something about which the Supreme Court has made it impossible to do anything. One may think of this as a form of right-wing virtue signaling. It is reminiscent of the millions of Frenchman who vaingloriously claimed to be part of the French Resistance long after the Nazi menace had been chased across the Rhine. Empty words.
If Roe is undone, abortion will still be legal in much of the country, and the issue will likely devolve to the states. Suddenly, those who made their stand rhetorically, will have an opportunity to do so in legislation. Of course, this will not be cost-free. We can expect the conservative case for partial birth abortion any day now from the rootless sophists of Conservatism, Inc. And, with corporate pressure to relocate conventions and corporate headquarters, we will find out who among our elected officials will betray the unborn for 30 pieces of silver.
Such clarity is welcome. Many of the claimed stewards of principle will be exposed for what they are. As in all crises, this will also be a time of courage and conviction, a crucible out of which the real and the truly principled can make themselves known.