People with the strongest feelings on both sides of this endless and bitter controversy agree that the primary purpose of the Constitution is to protect fundamental rights and freedoms. They simply have irreconcilable differences about what those rights and freedoms are. When that happens, what is the Supreme Court supposed to do?
Judging the human consequences of Roe in any neutral way is impossible. It all depends on where he stands on those fundamental rights and freedoms. If you believe that, at some point before birth, a fetus becomes a person in its own right, the consequences have been unspeakably bad. If you believe, as Roe asserts, that such rights do not exist, then the enormous gains for women in terms of bodily autonomy and freedom need not be compared with them.
My own intuitions are closer to the second position than the first, though I can’t believe the problem is simple, or that people who see it differently are mean.
The court cannot resolve the unsolvable. Nor can he pick a side, declare it the winner, and find in the Constitution what he wants to find, not at least without questioning his own legitimacy. All you can do in such cases is try to leave room for political compromise and avoid poisoning the entire body politic.
If that is correct, two things seem to follow. First, Roe was a huge mistake, not only as a matter of law—as the draft opinion says, the majority’s reasoning was almost unintelligible—but also because it tore at the fabric of American democracy. Second, overturning this bad law 50 years later risks compounding the damage.
Legal authorities broadly agree with Roe’s constitutional flaws. Even pro-choice lawyers who think the right to abortion can be found in the Constitution say that was not where he was looking for the court’s controlling opinion. The late Justice Ruth Bader Ginsburg said the case was wrongly decided, that it should have been based on the right to gender equality, not privacy. She also believed that the decision should have been less radical, to give abortion opponents a less objective target and to allow for a more gradual evolution of opinion.
An eminent scholar, John Hart Ely, also supported Roe as a matter of policy, but was more brutal when it came to evaluating the case law. “It’s bad because it’s bad constitutional law, or rather because it’s not constitutional law and hardly makes sense of the obligation to try to be.”
Ely also predicted that Roe would not weaken the court. There, he was clearly wrong. Roe is a most radical judicial activism, thinly veiled, applied to an issue on which the country was, and continues to be, deeply divided. He changed the way Americans view the court, undermining their own authority and respect for the rule of law, and turning judicial appointments into a recurring political circus.
In oral arguments last year in Dobbs v. Jackson Women’s Health, the case now in question, Judge Sonia Sotomayor said the issue had come to court after the appointment of new conservative justices. She asked, “Will this institution survive the stench this creates in the public perception that the Constitution and its reading are just political acts?”
Of course, Roe did a lot to create the stench in the first place, and Sotomayor was expressing the very bias she intended to deplore: the work of the court is all politics, all the time. Unfortunately, she also has a point. As much as Roe deserves to be overturned as a matter of law, doing so could destroy the last shred of hope of restoring the court’s credibility as a disinterested guardian of the law.
Toppling Roe would fuel the country’s polarization, which is already at dangerous levels. Opponents of abortion rights would not be satisfied: If the fetal viability standard is removed and states can ban abortion (with limited exceptions) after 15 weeks’ gestation, lawmakers will return in due course with laws that would prohibited after 12 weeks. or six. Abortion rights activists would be furious. The issue would come up again, again because the court took sides in a political fight.
Fundamentalists will not give up their positions, and they should not be asked to do so. But those who think that the most important job of democracy is to keep people from facing blows must recognize a basic reality: roe cannot be repaired, much less thrown away, without causing more constitutional damage. In the interest of good government, court conservatives should rediscover deference to long-established precedent, and leave this reckless and ill-advised law alone. Better to limit the damage already done to American politics than to push the country into something even worse.
More from Bloomberg’s opinion:
• A defining moment for the Roberts court: Michael R. Bloomberg
• On abortion, both parties can learn from Lincoln: Frank Barry
• Leakage of an abortion case shows that the Supreme Court is broken: Noah Feldman
This column does not necessarily reflect the opinion of the editorial board or of Bloomberg LP and its owners.
Clive Crook is a columnist for Bloomberg Opinion and a member of the editorial board covering economics, finance, and politics. A former chief Washington commentator for the Financial Times, he has been an editor for The Economist and The Atlantic.
More stories like this are available at bloomberg.com/opinion