The False Hope of Consensus
By is a fig leaf that can easily be blown away by the winds of political fortune. If we really believe in abortion rights, let us stand up and say so in a form that will resolve the issue once and for all.” As I’ve said previously, I think as political strategy this is profoundly misguided; I should probably explain why in a little more detail.
I do agree with Ed on a couple of points. Most importantly, as I argued in a previous discussion with Publius, I don’t think (David Souter’s valiant attempts in Casey notwithstanding) that stare decisis is a very convincing basis for upholding Roe. On these issues, I’m basically with Thomas; when it comes to constitutional (as opposed to statutory) interpretation it’s more important to get it right than uphold a bad precedent. I think that Roe should be upheld because it was correctly decided, but it’s virtually impossible (I think) to articulate a principled standard that would not allow one to reconsider Roe but would allow the overturning of, say, Bowers v. Hardwick. And certainly stare decisis won’t save Roe if 5 members of the Court are determined to overturn it.
But none of this makes a constitutional amendment viable. Nobody who favors reproductive rights could dispute that a constitutional amendment entrenching Roe would be a good idea. The problem is that 1)there is absolutely no chance of it happening, and 2)in a hypothetical context in which you could get 2/3 of Congress and 3/4 of the states to agree to such an amendment, Roe would obviously not be threatened in the first place. Even though Roe is popular and the Republican-endorsed Human Life Amendment is not, the former doesn’t have any more chance of passing the arduous amendment process than the latter, and using resources to fight for it would be an equally big waste of time. We should leave hopeless amendment fights to opponents of reproductive freedom.
One of the thing that puzzles me, in studying the abortion issue, how many people are desperate to believe that there’s some way of just ending the debate once and for all, despite the obvious incommensurability of the opposing positions. This is just something that I can’t really understand. Here’s the thing: politics is about conflict. Issues like slavery, on which a true consensus that a previous social arrangement was unjust emerges, are exceptionally rare. Most issues don’t end up being resolved by constitutional amendments. (The 14th Amendment, which would be more analogous, is the exception that proves the rule; it had to be ratified by replacing the amendment process by force, arguably its most important provision was immediately gutted by the Supreme Court, and the apartheid system it was designed to pre-empt persisted for damn near a century anyway.) Moreover, the 13th Amendment reflected the new social consensus; it didn’t create it. A constitutional amendment is not a means of winning the abortion debate; it would be a sign that you’ve already won. But it’s winning in the first place where all the work comes in.
The brutal truth is this: there are no guarantees. Protecting the freedom and equality of women is an ongoing political struggle; there’s no way around it. There’s only two viable ways of protecting Roe: 1)winning elections, or 2)making it politically unprofitable for Republicans to appoint justices who will overturn Roe. It’s difficult to accept that core freedoms should be subject to political changes, but as with most freedoms there’s no way around it. There are no shortcuts.