Roe v. Wade v. America

The President of the United States is an important man, not so much because he has his finger on the nuclear button, but because he gets to pick the rulers of the free world: the nine Justices of the United States Supreme Court. We are reminded of this fact during every election, principally by politicians trying to rally supporters or opponents of abortion to their cause. It is only a slight exaggeration, and a very sad symptom of the current imbalance in our system of constitutional government. And it should be a red flag to all Americans that there is much more at stake in the debate over Roe vs. Wade than just abortion.

To listen to most of the media, you would think that the whole thing is quite simple: if you oppose abortion, you should hope that Roe vs. Wade is overturned; whereas if you support abortion under any circumstances at all, then you should defend Roe vs. Wade to the last man, assuming the last man wasn’t already aborted. But there is a strong case to be made that those who oppose abortion and those who support it should both hope to see Roe vs. Wade overturned — because the Roe vs. Wade ruling is the root cause of the most bitter and emotional debate in contemporary America, as well as a threat to the rule of law, and an insult to democracy.

To start with, the decision is just bad law. I know non-lawyers are not supposed to talk about law in our country (we’re just supposed to obey it). But unfortunately, the Constitution is just such a clear, concise, and accessible document, that even mere citizens can have an opinion on it. And Roe vs. Wade is, allegedly, a decision based in Constitutional law. Among the main duties of the Supreme Court is judging whether any of our state laws are in conflict with the Constitution, which is the Supreme Law of our land. When such a conflict is found, the state law is struck down; where there is no direct conflict, the state law must be allowed to stand — even if the Judge doesn’t like the law. This is our system.

Roe vs. Wade was one of the more egregious assaults in a far-reaching war on this system, a war conducted under the banner of “judicial activism”. The origins and motivations of the judicial activism movement are deep and complex, and have been the subject of many long, boring books, so allow me to summarize a bit. Activist judges believe that they’re smart and you’re dumb; and that it would be a shame if they had to wait for 51% of the dumb to catch up with them, before any of the smart things they want to do become law through the antiquated process we call “Democracy”. Thus, they see the Constitution as a “living document”, and since it’s alive that means you can torture it until it says anything you want.

In the Roe vs. Wade decision, the process was explained this way: the Constitution says nothing about abortion, and the democratically-enacted laws concerning abortion were on the books for 120 years without being challenged as unconstitutional, however, smart people have evolved past these laws and thus they are unconstitutional. (Plus, if you rearrange the letters in the preamble of the Constitution you can spell out “Do what you think is best, your Honor — The Founding Fathers”.)

And so, in 1973, the Supreme Court struck down every existing law regulating abortion in this country. The result has been the most divisive conflict in our culture today. This is no coincidence. The issue has become so divisive entirely because it was not decided democratically. Two consequences have followed from the decision. First, it advanced a disturbing trend, continuing (with other activist decisions) an enormous power shift away from elected legislatures and to unelected courts. The President is now seen (and feared) as a sort of judicial Elector, a man who must be carefully studied because he has the power to select black-robed Kings, Rulers-for-life who can give the force of law to their personal opinions. Second (and as important), the democratic process is a moderating influence — one that was entirely removed from the abortion debate by Roe vs. Wade.

Democracy makes decisions through a process of consensus building. This gives the decisions enormous moral weight; a weight that is absent from imposed decisions. Compare, for example, the reactions of the Democratic Party to the election of 2000 vs. that of 2004. Because there was no clear majority in 2000, and the Democrats saw the election (rightly or wrongly) as having been decided by the Supreme Court, the outcome was seen as illegitimate by many. This resulted in a venom and mean-spritedness toward President Bush that was shocking in its intensity, and it made the Democrats even more committed to continued conflict. The election of 2004, in contrast, gave a clear win to Bush, and an undeniable rebuke to the Democrats. Afterward, there was much less acrimony and much more soul-searching. In the end, the Democrats were left with the awful conclusion that they must go out into America and change a few minds if they are going to win next time. This is the genius of democracy. It ensures a concordance between the decisions of government and the beliefs of most of the governed. It also encourages civility in debate, since you are very unlikely to convert people to your side of an issue by calling them evil or ignorant.

For thirty years, there has been discord on the issue of abortion, because consensus is irrelevant. The law has been handed down immutable. The situation will continue to fester until it is returned to the democratic process. This can only happen if the Court overturns Roe vs. Wade.

Contrary to popular belief (i.e. ignorance lovingly cultivated by the Media), abortion will not become illegal the day that Roe vs. Wade is overturned. The issue will simply revert to the jurisdiction of the state legislatures. Each state will then enact laws in concordance with the consensus of its population. And yes, this means that there will be more restrictions on abortion in Utah than there will be in Massachusetts. But this is exactly as it should be. The Constitution leaves most issues to the States precisely because they are — and always have been — different. Vermont and Alabama are very unlikely to be happy with the same laws on a variety of issues, but then there is no need for all 50 states to have identical laws on most issues.

The nation may be divided fifty-fifty on the subject of abortion, but very few states are. By allowing the states to regulate this issue — as intended — we achieve the impossible: an equally divided nation in which most people live under the law of their choice. Where one side loses, it will know that it lost because most people disagreed, not because the elite disenfranchised everyone. The anger and hatred currently directed at clinics or protestors will be redirected into public relations campaigns. If one system clearly proves superior in practice, then this will be seen — and minds will be changed. I believe most people will be shocked by how quickly the legitimacy afforded to decisions made by consensus will blunt the current animosity in the abortion debate. Powerless people often hold extreme opinions. There is no penalty for doing so, because there is no responsibility to bear for mistakes.

There is, however, one group that will not be happy the day Roe vs. Wade is overturned: those who do not trust democracy. The rest of us — pro-life, pro-choice, and in-between — should all be eager to have the great judicial mistake undone and the legitimate decision making process restored.

You either believe in government by the people, or you don’t. Those who do, appeal to their fellow citizens’ hearts and minds. Those who do not, solicit court orders.