Countermobilization Notes

Charles Krauthammer, taking one of the laziest column ideas off the shelf, is the umpteenth nominally pro-choice wealthy male columnist to argue that Roe should be overturned and that this would end most of the conflict about abortion in the United States. The problem with his argument is that there isn’t the slightest reason to believe that it’s true. Matt deals with some of the obvious problems; a few more points, some in response to his commenters:

• One of Matt’s commenters brings up the often-told myth that Ruth Bader Ginsburg actually agrees with Krauthammer, but this is very misleading. Ginsburg’s argument isn’t that the Court shouldn’t have reached the outcome it did in Roe, but that it should have waited until gender equality jurisprudence was better developed to rest on those grounds. Even this much different argument, however, is also almost certainly wrong; it wouldn’t make any difference to the public what grounds the Court used to reach its decision. Almost nobody without a professional obligation reads Supreme Court decisions, and Roe already polls better than its underlying policy outcome.
• In addition to Matt’s examples, devastating to the “countermobilization” hypothesis are the facts that 1)the American abortion debate was already highly “divisive” and pro-life groups powerful enough to stop virtually all state liberalization, before the Supreme Court intervened, and 2)in Canada, courts created the most liberal abortion regime in the world but abortion isn’t a remotely salient issue in Canadian politics. On the latter point, Pithlord argues in comments that “Parliament decriminalized in 1969” and that “abortion in Canada has been left to the political process.” The first claim is straightforwardly erroneous; abortion remained a criminal offense for doctors who performed one outside of the arbitrary committee structure (which in practice was just a codification of abortion-on-demand for affluent women and no abortion for poor rural women that exists under a ban anyway.) Second, in its insistence on non-arbitrary regulation, the Canadian Supreme Court created a standard that is, in practice, far more restrictive than Casey. (A 24-hour waiting period or the recent “partial birth” ban, for example, could not remotely pass the Canadian Supreme Court’s requirements.) It is true that the fact that Canada hasn’t passed further abortion regulations reflects the popularity of the pro-choice position in Canada, but of course this is precisely the opposite of what Krauthammer claims will happen. There was supposed to be a backlash against the Court striking a policy hammered out by the legislature; there wasn’t.
• It is true that as a manner of formal logic Matt isn’t correct to say that a pro-choice anti-Roe position is absurd. It’s possible (indeed, if one takes constitutionalism seriously, necessary) to believe that the Constitution doesn’t require all of one’s preferred policy preferences (I don’t believe that the Constitution requires universal health care, for example.) In practice, however, very few people oppose Roe out of some kind of coherent constitutional theory, and as his inability to understand the implications of Carhart II and many of his previous writings suggest Krauthammer certainly has no idea what he’s talking about. (A handy tip: anybody who defends Bush v. Gore isn’t opposing Roe out of a commitment to judicial craftsmanship.) In addition, I suspect Matt had in mind the Wittes/Rosen types who believe that overturning Roe wouldn’t matter for abortion rights, which is of course a plainly absurd position.

Overturning Roe would not attenuate the conflict over abortion in the United States; it would remain a very important (indeed, in the short-term, more important) issue in American politics that divided legislators at the federal and state level, Krauthammer’s fairytales about a mythical pre-Roe policy eden notwithstanding. It would just mean that the abortion rights of some classes of women would be extinguished for no good reason.