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Why Roe Was Right: Foreword


I promise that the name of this blog will not be changed to “Scott replies to Matthew Yglesias posts about judicial policy-making,” but since I promised (threatened?) a legal defense of Roe v. Wade a couple of months ago before being derailed by grading and the flu, I thought I would use this set of questions as incentive to finally get the thing written. Before I start my defense of the outcome of Roe as constitutional law, let me deal with the last two points first:

  1. If you’re interested in more detail I can email you the relevant dissertation chapter, but Roe clearly increased access to abortion, especially for poor women and women of color. This sociological distribution is indeed counterintuitive; as Roe’s critics-from-the-left often point out, the Court’s decision guaranteed only a “negative” right to abortion, and the Court subsequently refused to find a constitutional right to government funding of abortions. Despite this, formally legal abortion is far more important to relatively disadvantaged women, as the data make clear. First, affluent white women have de facto access to abortion irrespective of the formal legal regime; formal barriers to abortion only affect relatively disadvantaged women, so removing barriers increases access to the latter even if the policy is suboptimal. Second, a network of providers willing to provide subsidized abortions has helped to fill the gap left in states where abortion isn’t funded for poor women. As to whether this is a good thing, I certainly think so, as I believe that reproductive freedom is central to women’s freedom and equality, and (like most people in practice) do not think that a pre-viability fetus is a “person” legally or morally. In addition, Roe has the virtue of making American abortion policy actually consistent with the rule of law. The only politically viable alternative to legal abortion–abortion-on-demand for affluent women and let-them-use coathangers for poor women–is completely indefensible from any normative perspective. No critic of Roe who is unwilling to deal with the fact that abortion laws were not and would not be enforced equitably should be taken seriously.
  2. The question of whether Roe has been good for liberalism is considerably more complex. The entanglement of causal factors in voting behavior makes it a difficult question to address. Nonetheless, I reject the claim that Roe is a net negative for progressive politics in the U.S. First of all, the burden of proof is clearly on those who claim that Roe is a net negative, given that both Roe itself and the policy position it embodies are very popular. Most people making this argument, as Dave and I have both discussed recently, tend to cherry-pick constituencies and states that have shifted red while ignoring those that have shifted blue. We don’t know, but it seems obvious to me that Kansas and Alabama and Nebraska aren’t about to start voting Democratic if they become pro-life (as Yglesias has pointed out, to most working-class cultural conservatives gun control and homophobia are more important than abortion), but New York and California certainly might start voting Republican. Second, the timeline isn’t really consistent with the claims made by liberal critics of Roe. The key elections for entrenching New Right and the South within the Republican Party are 1968 and 1972, both preceding Roe. While Nixon didn’t incorporate economic quasi-libertarianism, he exploited the cultural concerns of the New Right (which we are discussing here) very effectively. I think that school prayer and civil rights are far more important than abortion, and the time period of the New Right’s ascent is consistent with this view. Finally, I will note that even if one accepts the dubious proposition that abortion is a bad issue for Democrats, there’s no free ride. Opposition to abortion will materialize no matter what institution makes the policy. If you want to say that Democrats should just abandon abortion rights, fine, but getting rid of Roe will greatly restrict the abortion access of underprivileged women without defusing it as an issue. (I don’t even think that it would matter much to Supreme Court appointments; overturning Roe would hardly prevent it from remaining an issue. And, at any rate, one’s position on abortion is a pretty good synecdoche for one’s general ideological outlook in most cases, and a strict libertarian isn’t going to be appointed to the Supreme Court anytime in the near future.)

OK, those are the relatively easy questions. Next: defending Roe as constitutional law.


One more thing that an MY commenter reminded me of–would Roe hurt the GOP at the level of presidential politics? Maybe, but while I used to think that I’m far from sure. The Dems would increase its popular vote base, probably, but whether you win NY and CA by 15 points or 35 (or WA by 5 or 20) doesn’t matter. What red state would the Dems win if Roe was overturned? There aren’t a lot of obvious candidates. A lot of nominally pro-choice wealthy surbabnites will figure out that they can get abortions anyway, and they could sure go for some of those upper-class tax cuts. Returning the issue to the state legislatures gives lots of new opportunities for wingnut groups to mobilize. And once that cycle plays itself out (if ever), movement conservatives can be worked into a lather by the gays and SpongeBob Squarepants and Hitlery etc. etc. etc. Bascially, it seems to me that you’re accepting certain bad consequences for the uncertrain possibility of a marginal improvement of Democratic presidential prospects. Pass.


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