Published June 24, 2022
After nearly 50 years, the US Supreme Court has overturned Roe v. Wade, Planned Parenthood v. Casey and their related precedents, returning to the American people once again the authority to govern ourselves on the vexed matter of abortion through the deliberative processes of the political branches of government—as is the case in the majority of nations around the world. By my lights, Roe and its progeny have been very bad for America. By virtue of those precedents, the Supreme Court imposed on the nation an extreme, one-size fits all regulatory regime for abortion of its own invention, without any justification in the text, history or tradition of the Constitution.
Indeed, the reasoning in both Roe and Casey is famously weak and even the most sophisticated proponents of abortion rights have put forward their own justification rooted in the 13th amendment’s ban on involuntary servitude or the 14th amendment’s guarantee of equal protection, rather than mining that latter amendment’s due process clause for an implicit right to privacy, which was the basis for the Roe decision, or an unwritten liberty interest, which was the grounding of the Casey decision. In my view, the Court’s jurisprudence has, from the beginning, been a conclusion in search of a justification—a tortured narrative of constantly shifting arguments, standards and rules.
Not only did Roe and its progeny corrupt the law, but it also badly damaged our politics. It channeled all of the political energy of the abortion debate into proxy battles for control of the Supreme Court that played out in a toxic fashion in presidential and senatorial campaigns, reaching a shameful apex in judicial confirmation hearings, which have become a no-holds-barred blood sport where politicians don’t merely argue, they seek to destroy the nominee as a person. This has transformed into something entirely darker, with justices and their families facing harassment and other threats of violence, including murder.
And, of course, there is the human toll that can be attributed in large part to Roe. Since 1973, an estimated 60 million unborn lives have been lost to abortion, according to data from the Guttmacher Institute. This is a staggering number, roughly equal to the combined populations of New York and California. But apart from all this, Roe and its progeny have wounded the nation in a way that is even more relevant now; Roe eliminated the need for us to talk to one another in the political sphere in a way that has real and concrete meaning for the laws and policies that bind us. The Supreme Court took the issue of abortion out of the political, legislative and executive spheres (except for minor ancillary side constraints such as parental involvement laws, informed consent provisions, waiting periods and limits on especially controversial methods of abortion).
It declared one side—the abortion rights side—the victor of the most hotly contested public question in the modern era, and told the other side to go home. And it did so under a notoriously weak interpretive analysis that even liberals like American legal scholar Laurence Tribe once recognized as unpersuasive
So for nearly 50 years, those on opposite sides of the issue haven’t really had to learn how to talk to one another in a serious way about how to find a path forward for the law and policy of abortion—we simply did what the Supreme Court told us insofar as we could tell what that was. There was no need for those who disagreed to discuss the issue since we weren’t allowed to govern ourselves. But that all has to change now. We need to re-learn how to talk about abortion as a precondition of self-governance. How do we start? Much could be said, but I will limit myself to the perhaps obvious but important observation that we will not get anywhere unless we are honest and charitable with one another. We need to be candid with one another (and with ourselves) about what we believe and why it matters, what we intend to do and how we mean to do it. But more importantly, we must be charitable. In particular, we owe our fellow citizens with whom we disagree the respect of listening and trying our level best to understand their arguments, the goods they hold most dear, the harms they most fear and to try to internalize their perspective. When we characterize their arguments, we must do so accurately and in their strongest form such that our interlocutors would recognize their own tone and substance in our rendition.
And we must genuinely embrace the notion that both sides have something vital to defend. Concretely, those who call themselves “pro-life” must understand that those who describe themselves as “pro-choice” are desperate to defend women’s bodily autonomy and secure their equal position in the economic and social life of our nation. And conversely, the latter advocates must acknowledge that the former are committed to the intrinsic equal dignity of every human being, born and unborn. Once that’s out of the way, we can begin the hard work of trying to find common ground so that we can, together, care rightly for women, children (born and unborn) and families, both before and after they are born.
O. Carter Snead is a professor of law, director of the de Nicola Center for Ethics and Culture at the University of Notre Dame and author of What It Means to be Human: The Case for the Body in Public Bioethics (Harvard University Press 2020).
Photo by Gayatri Malhotra on Unsplash