Reading this truly dreadful piece I referenced yesterday, I was reminded of Katha Pollitt’s immortal line about Sully’s fellow misogynist Brit Christopher Hitchens: “[i]t wasn’t just the position itself, it was his lordly condescending assumption that he could sort this whole thing out for the ladies in 1,000 words that probably took him twenty minutes to write.” Using a classic under-informed reactionary pundit trick, he tries to disguise the tired, useless “overruling Roe will work out fine, and I’m I’m wrong it will certainly hurt you more than it hurts me” genre by laundering it through innocent bystander Elizabeth Warren, which just it makes it even more irritating:
Elizabeth Warren is not afraid. Today, she set out a proposal to integrate Roe v. Wade’s provisions for access to abortion into federal law. She even framed her proposal this way: Congress Can Protect Choice. And she’s right. Congress can legislate on abortion; the matter can be settled through politics, rather than through a strained parsing of the Constitution by the courts. Political arguments can be made, and countered. Voters can go to the polls to support candidates who will vote for such a law, which will make any previous Supreme Court ruling irrelevant.
This is the process called politics. And America, for 46 years, has tried to keep abortion out of it. It’s encouraging to see Warren jump into the fray to bring legislative politics back to the subject — and to call the right’s bluff on taking that approach. It’s amazing it has taken this long.
Yes, if Roe is overruled, the abortion controversy can finally be resolved by a majoritarian democratic institution like [check notes] the United States Senate?
Warren, of course, doesn’t want Roe to be overruled, and the limitations to a legislative solution are blindingly obvious:
–Her proposed legislation is DOA as long as Mitch McConnell is majority leader.
–Even if the next unified Dem majority can eliminate the filibuster and pass a bill like Warren’s, the next unified Republican government will simply replace it with draconian national abortion regulations that apply in all 50 states, and that can only be repealed by unified Democratic governments.
–Since the Senate vastly overrepresents the anti-Roe minority, the equilibrium, will tilt much towards the latter. BLUFF CALLED!
But, in addition to all of this, imagine how ignorant you have to be to assert that abortion has not been part of “politics” for 45 years. (I would suggest informing Sullivan of, for example, the existence of Planned Parenthood v. Casey, but it probably wouldn’t help.) Yes, if only American legislatures were allowed to regulate the abortion issue we wouldn’t have had all these problems!
The howlers get even more egregious:
Every other major democracy treats abortion this way: through the legislative branch hammering out a compromise.
Yeah, no. And the Canadian example is hardly trivial. Directly as the result of a Supreme Court decision, Canada has arguably the most liberal abortion policy in the world, and this has been 1)a politically stable result that 2)works very well as public policy, with none of the parade of horribles suggested by people who argue that women can’t be trusted and need to be subject to lots of arbitrary restrictions even if not a total ban. It reveals Sullivan’s underlying claim that abortion is only a divisive issue in the United States because the courts got involved as the completely ahistorical nonsense that it is.
And even if the claim was true, it’s also irrelevant. Maybe judicial review wasn’t necessary to produce reasonable abortion policy compromises in Europe; it wasn’t necessary to undermining apartheid police states within those countries either either. Judicial review is part of the American political process; to selectively abjure it in the case of abortion requires an argument that reflects the fact of the unique American context. “A purely legislative solution works fine in France” is neither here nor there.
In the United States, of course, this is currently not how things work. Voters have been largely sidelined on the question since 1973. The Supreme Court decided the issue, so there is little or no incentive for political players to hammer out any kind of compromise and every incentive to use the issue to rally the party bases, demonize ideological opponents, and enact extreme measures, knowing nothing will come of them, and no real accountability will follow.
Imagine writing this shit about the aftermath of Roe this week of all weeks. I hate to tell you, but legislatures like Georgia and Alabama aren’t about to start hammering out “reasonable compromises” if Roe is overruled.
Of course, Sullivan has to try to explain why judicial review is bad with respect to abortion but good with respect to issues that affect him directly. So he has a section about public opinion and the courts that confuses cause and effect with respect to the Supreme Court and same-sex marriage and civil rights. (Same-sex marriage didn’t become popular because of Obergefell.) The Supreme Court, as Gerald Rosenberg has demonstrated at some length, is not an educational institution; public opinion goes its own way irrespective of its rulings. Anyway, the whole argument is a non-sequitur; Roe is supported by 2-to-1 majorities — shouldn’t we keep it, then? Sullivan identifies no good procedural reason why Obergefell is right and Roe is wrong, and his argument about public opinion is nonsensical; he just likes the policy outcome of the former more, which is meaningless to people who actually support abortion rights.
So I favor legal abortion in the classic but now unfashionable formulation: safe, legal, rare. And I favor sensible measures to regulate it as the pregnancy progresses, and, with the exception of late-term emergencies, I favor tightening restrictions as the unborn child develops. Most Western countries have reached this point for quite some time. (Germany requiresthose seeking an abortion in the first trimester to have a three-day waiting period and counseling, and bans abortion after 12 weeks. Denmark bans it after 12 weeks as well.)
Ah, yes, the classic dodge that pretends that term limits are going to be the only subject of regulation when Roe is overruled. Anyway, it will not surprise you to know that Sullivan is also wrong about the law in the two countries he cites. Abortion is in fact available in a wide range of circumstances (not mere “emergencies”) after 12 weeks in both Germany and Denmark. And, again, you can’t just take one isolated aspect of an European abortion law and graft it into the American context (where abortion is generally not state-subsidized, there are active and successful efforts to shut down clinics that will only get worse when Roe is overruled, etc.) and assume they’ll work the same way.