A Surprising Take on Roe v. Wade and the Supreme Court at the NYT

Seeing a reasonable take on one of the most divisive issues in our political discourse on the New York Times editorial page was heartening. Abortion rights have been at the root of every contentious Supreme Court confirmation since Robert Bork. The tenuous decision in Roe v. Wade is often criticized for the legal reasoning in the majority opinion. However, the political left clings to it with a ferociousness that is startling.

That is why this headline “The Case for Accepting Defeat on Roe” from the Times stunned me a bit. No doubt law professor Joan C. Williams is contemplating the ruling in light of the nomination of Amy Coney Barrett.

Williams takes a different perspective on the current state of affairs than many on the left. She also views the current state of abortion rights in a negative light. However, if you advocate for so-called reproductive rights, her view of the current situation is not indefensible. Conservatives tend to focus on horrifically permissive abortion laws like the ones in New York and Oregon. However, her dim view of abortion access nationally actually supports her conclusion. She characterizes the current situation as follows:

The argument that the left has already lost the abortion fight reflects the fact that there’s no abortion clinic in 90 percent of American counties. This is the result of the highly successful death-by-a-thousand-cuts anti-abortion strategy, which has piled on restriction after restriction to make abortion inaccessible to as many American women as possible.

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She also characterizes the concurring opinion of Justice John Roberts in June Medical Services v. Russo over the summer as a hollow victory, which I found interesting. For pro-life advocates, it felt like a blow. However, Williams notes:

Justice Roberts refused to uphold Louisiana restrictions virtually identical to those the court struck down as unconstitutional just four years earlier, but clearly stated that his reluctance was because of his respect for precedent. Anyone with their eyes open could see the justice signaling to abortion opponents to continue the process of eroding Roe v. Wade’s nigh-absolute protection of access to abortion during the first trimester by inventing new types of restrictions, which they have been remarkably creative in doing.

Williams then brings up a fascinating historical note and argues that letting go of Roe v. Wade would actually be a tribute to Justice Ruth Bader Ginsburg. She notes comments made by RBG in 1992:

Often forgotten is that R.B.G. herself had decided that Roe was a mistake. In 1992, she gave a lecture musing that the country might be better off if the Supreme Court had written a narrower decision and opened up a “dialogue” with state legislatures, which were trending “toward liberalization of abortion statutes” (to quote the Roe c ourt). Roe “halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue,” Justice Ginsburg argued.

This view mirrors the assertions of many pro-life advocates who feel like the Supreme Court took away the right to determine the constraints and legality of abortion through our elected leaders at the state level. The United States was and is a large and diverse country where one-size-fits-all solutions, especially when they are imposed by judicial fiat, create division.

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As Williams notes, 21 states have passed laws restricting abortion, which would become law if the Court overturns Roe v. Wade. She is clearly not a fan of these laws but seems to recognize that if local control were restored on this one issue, it could bring down the political temperature. It would reduce the focus on the Court in presidential elections, and we would never have to live through another confirmation like Justice Brett Kavanaugh’s.

That seems like a perspective most on the right have long advocated and would happily support. Williams then advocates for taking the abortion issue up in state legislatures. Conservatives have argued that this is where it should have remained in the first place. It is also important to note that the laws in most of the 21 states that have restricted abortion would have been considered liberalization in 1973 when Roe v. Wade was decided. I might suggest to Williams that embracing radical laws like those in New York and Oregon has not helped the pro-choice movement make a case palatable to the majority of Americans.

Williams seems to believe that taking Roe v. Wade off the table would allow voters to focus on economic issues in elections. I can agree with this assertion. However, I disagree with her conclusion that this would benefit Democrats. She is missing a realignment that is going on.

The New York Times recently profiled a lesbian former Bernie Sanders supporter who will now vote for Donald Trump in November. The economic populism that is occurring focuses on trade and middle-class viability. On these issues, Sanders voters and Trump voters could strike a bargain, similar to the one Williams talks about that was brokered by conservative thinkers like William F. Buckley and Phyllis Schlafly. The president’s willingness to take on China and withdraw from the Trans-Pacific Partnership play well with both groups. So does his anti-war position.

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The Republican Party, after Trump, will not revert to the Republican Party before Trump. Similarly, the Democrat Party is pushing economic and environmental policies that have devastated middle- and working-class voters in California on a national basis. They have become the party of the very rich and the very poor.

The donor class of billionaires Democrats now rely on will not allow them to put America’s interests first. As an example, Michael Bloomberg is putting $100 million into Florida alone for Biden. If you think he will tolerate policies that negatively impact his interests in China, think again. Nine of the ten wealthiest people in the country support Democrats. The party will have to continue to serve those interests.

The party is also embracing neo-liberals like Bill Kristol and members of the Atlantic Council. This group of people believes deeply in the post-World War II consensus and nation-building. They do not mind using American troops to achieve their goals. President Trump is demonstrating we can achieve peace through joint economic prosperity, even in the Middle East. Many Americans prefer this approach.

Removing the issue of Roe v. Wade from the national conversation would undoubtedly change the political calculus significantly. It might make it possible to reengage in the battle of ideas on a very different playing field. And as a new crop of young, diverse, culturally savvy Republicans demonstrates, the right is bringing an entirely new arsenal of ideas to the battle.