Roe Was Right (Pt. III): The Question of Democratic Legitimacy

In the previous two posts (1, 2) in defense of Roe v. Wade, I argued that 1)Roe is a logical application of a long-standing constitutional tradition, and 2)The arguments that would distinguish abortion from the other cases were not convincing. While existing doctrine does not compel judicial intervention in the way a restriction on political speech would, the doctrine certainly permits it. While I am not a believer in grand theories of constitutional interpretation (at least to the extent that they are supposed to end jurisprudential debates), I am enough of a formalist to believe that inferred rights place a very stringent burden of proof of the judiciary. In addition, I don’t find stare decisis arguments of the kind presented in Planned Parenthood v. Casey very compelling. I don’t think that overturning Roe would damage the legitimacy of the Supreme Court. To me, the key is the Carolene Products standard the Supreme Court has used to evaluate civil liberties claims for several decades: namely, the idea that the Supreme Court should be especially willing to protect groups excluded from the political process and correct cases where the democratic process malfunctions. From this perspective, the case for Roe becomes highly compelling:

• The burdens inherent in carrying an unwanted pregnancy fall, of course, exclusively on women, and abortion cannot be adequately discussed outside of the context of historical gender discrimination. John Hart Ely, who used Carolene Products to develop a sophisticated theoretical defense of Warren Court jurisprudence, argued that Roe was different from cases such as Miranda and Brown because women, being an enfranchised majority, could protect their own interests in legislatures. Needless to say, this is quite clearly mistaken. Most abortion laws were enacted in a period when women were entirely disenfranchised. Even leaving that aside, even after the passage of the 19th Amendment women faced significant legal and social discrimination, and have been underrepresented in legislatures and face barriers of entry to other aspects of the political process as well. Abortion is, in fact, a classic Carolene Products case. The fact that women were not part of legislatures that passed abortion laws, allowed them to be enforced arbitrarily, and refused to amend them both lacked adequate female membership, and the inequities facing women more broadly, provides a compelling justification for Roe.
  

• Gender inequities are not the only failures of democratic processes involved in abortion legislation. The inequitable enforcement of abortion laws creates perverse incentives to keep abortion laws on the books; the people most affected by abortion laws are those with the least political power. As a result, most state legislatures didn’t respond to clear shifts in public opinion. Abortion laws that were rigorously enforced would, at least, be entitled to a very strong presumption of constitutionality. But existing (and any politically viable future legislation) abortion legislation was not, and abortion laws that were rigorously enforced would almost certainly be quickly repealed.

• Roe‘s critics portray the courts as imperial overloads thwarting democratic majorities, but this isn’t a good description of what’s going on with Roe. If anything, the court’s opinion was closer to public opinion than state legislatures in 1973, and Roe has consistently enjoyed strong public support. In addition, abortion law in legislatures was not an example of a strong social consensus being embedded by decision-makers, but instead is a history of delegation and deferral to other actors. The most common legislative reform tactic was to pass legislation that allowed medical professionals to justify performing or denying almost any abortion absent a grave emergency; in other words, delegating decision-making authority to protect doctors while not providing due process for women seeking abortions. Decisions of democratic legislatures are entitled to judicial deference, but the decisions of medical review boards rather less so.

These points create an extremely compelling defense of Roe. The court did not cut against a social consensus, and the political processes it intervened in were profoundly defective. These systemic problems do not warrant judicial intervention where run-of-the-mill political issues are involved, but reproductive rights have long been recognized as fundamental by the court. Again, this would not be sufficient if the law prevented judges from intervening, but it did not. The existing law clearly makes Roe plausible, and none of the typical arguments for judicial deference in the face of uncertainty apply. The abortion laws that existed in most states in 1973 were unconstitutional, and the Supreme Court was right to strike them down.