Plan B is Plan B Because It’s Worse

Timothy Burke is upset that Amanda Marcotte called arguments made by people like Benjamin Wittes that pro-choicers should “let go” of Roe “horseshit.” Whether or not one likes Amanda’s choice of words, however, I think she certainly has the better of the argument. Burke’s post does intelligently express some of the most common “contrarian” arguments about Roe, which are worth attending to.

The first problem with Burke’s post is that it’s engaged in some obvious strawman demolition. Burke asks: “Does the campaign for the right to choose in Ireland curl up and die because they don’t have Roe vs. Wade to begin with? You work with what you got. Go to the barricades for Roe if you like, but if you don’t have a Plan B, then don’t spit on the people who do.” But, of course, nobody is arguing that there shouldn’t be a “Plan B,” or that pro-choicers should give up if Roe is overturned. What Amanda and other critics of Wittes object to is his claim that Roe being overturned might not affect reproductive rights that much, or perhaps may even be a net positive. I can understand why Burke doesn’t want to defend this claim, since (as he essentially concedes) it is transparently wrong. But once you’ve conceded this, you’ve conceded that it’s important to preserve Roe, and that therefore Wittes’ central (and most interesting) argument is incorrect.

So what, exactly, is Burke arguing? He puts forward a couple of other points that try to salvage the Wittes thesis:

  • 1)”It’s pretty clear [Roe is] going to be overturned sooner or later, either in total or as good as such.”

If Burke is right about this, then I agree that Wittes’ arguments become more relevant. But there’s no reason to believe that he is. As for Roe being directly overturned, this is clearly premature, and I think the odds are against it. Not merely because a Democratic President may well appoint Stevens’ or Ginsburg’s replacement if they hold on until 2008, but because there’s good reason to believe that overturning Roe is not a high priority for the Republican elites. It is entirely possible that Roberts would vote to keep Roe. I’m certainly not saying that Roe is safe, but it’s far too early to write the obituaries.

I suspect that a lot of the weight of this argument relies on the “as good as such” qualifier. I assume that he means that if the Supreme Court were to uphold Roe but continue to uphold a variety of regulations such as parental consent and waiting periods, this would be a de facto overturning of Roe. This is a common (and understandable) belief, but it isn’t correct. As Mark Graber recently noted, “the empirical evidence suggests that keeping abortion legal has far more powerful effects on access to abortion than any restrictive policy short of outright bans on the procedure.” This isn’t to say that these types of regulation aren’t bad; women shouldn’t be subject to a humilating obstacle course when they get an abortion, and as far as I’m concerned one woman being prevented from obtaining an abortion by essentially unprincipled regulations is too many. But there is a huge difference between legal-but-regulated abortion and criminalized abortion. Women who want to get abortions usually get them as long as the procedure remains formally legal. (And, of course, overturning Roe would not reduce the number of obstructionist regulations.)

  • 2)”Wittes observes that centering the debate on Roe vs. Wade has prevented those of us who believe in choice and in the right to privacy and self-ownership from securing that right either constitutionally (with an amendment) or through state and federal statutes. We’ve put all our eggs in the Supremes’ basket.”

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