No Left Turns discusses an article by Benjamin Wittes in The Atlantic who argues that the time has come for the Democratic Party to stop defending Roe v. Wade. Wittes gives two reasons why this makes sense for Democrats. The original article is subscription only so the following is from No Left Turns' post:
Part of Wittes' argument is that the criticisms conservatives have made against it are not totally off the mark.
"Since its inception Roe has had a deep legitimacy problem, stemming from its weakness as a legal opinion. Conservatives who fulminate that the Court made up the right to abortion, which appears explicitly nowhere in the Constitution, are being simplistic--but they're not entirely wrong. In the years since the decision an enormous body of academic literature has tried to put the right to an abortion on firmer legal ground. But thousands of pages of scholarship notwithstanding, the right to abortion remains constitutionally shaky; abortion policy is a question that the Constitution--even broadly construed--cannot convincingly be read to resolve."
Of course, this comes as no news to any conservative. But his more interesting argument concerns how a reversal of Roe v. Wade would place the Republicans in a deep dilemma.
"Roe gives pro-life politicians a free pass. A large majority of voters reject the hard-line anti-abortion stance: in Gallup polling since 1975, for example, about 80 percent of respondents have consistently favored either legal abortion in all circumstances (21 to 34 percent) or legal abortion under some circumstances (48 to 61 percent). Although a plurality of Americans appear to favor abortion rights substantially more limited than what Roe guarantees, significantly more voters describe themselves as "pro-choice" than "pro-life." Yet because the Court has removed the abortion question from the legislative realm, conservative politicians are free to cater to pro-lifers by proposing policies that, if ever actually implemented, would render those politicians quite unpopular."
He makes a valid point; as long as Roe stands Republicans can fulminate against it, secure in the knowledge that they don't really have to do anything about abortion. We've spent a good bit of time talking about the divide in the Democratic Party between moderates and ultra-liberals, but a reversal of Roe would no doubt expose a fault line within the GOP that is just as wide--the one separating die-hard pro-lifers from those of us who, while favoring certain restrictions on abortion, see considerable moral and practical problems with an outright ban.
Three things should be mentioned here. First, when Wittes says that Conservatives have not been entirely wrong about the lack of constitutional support for the 1973 Roe decision what he's really trying to say is that Conservatives have been completely correct. Everything he says in that paragraph confirms this. He just doesn't want to state it that baldly for fear of incurring the censure of his liberal associates.
Second, it's not at all clear that the statistics are as Wittes sees them. There is reason to believe that the nation is much more sympathetic to placing restrictions on abortion than pro-choicers would have us think. This is why Kerry tended to downplay and waffle on the issue during the campaign and George Bush didn't.
Third, whether an overturn of Roe would create a political problem for Republicans depends upon how they react to it. If they point out that remanding the matter to the states gives the people greater say in formulating their state's abortion policy, it may well work to Republicans' benefit. Removing abortion from the judiciary and giving it to state legislatures empowers people to decide for themselves where to draw lines on this issue and should be presented that way by Republicans.
It is also not irrelevant that if the pro-choice throng is as numerous as Wittes' suggests it is, then they should have nothing to fear from having state legislatures, which are much more responsive to the will of the people than is the Supreme Court, establish the law. The fact that Pro-choicers are generally loath to have abortion law handled by the states gives the lie to their proclamations of substantial majorities in support of their position. We strongly suspect that they resist throwing the issue back into state houses because they fear that the majority of citizens in most states favor restrictions which they oppose.