August 02, 2007
Cute, But No
August 2, 2007 06:27 PM
David Schraub composes a charming alternative history for the Ninth Amendment, in which the Framers, inspired by Abigail Adams, vigorously debated whether the Constitution protected a right to control reproduction (in the case of slaveholders, not only their own babymaking but their slaves'). He puts this fiction in service of the claim that those who perceive a backlash against Roe overestimate citizens' understanding of legal theory; people aren't angry about how abortion becomes legal or illegal, the argument goes, they're results-oriented and only care whether it is legal or illegal.
This argument misunderstands the type of legal theory that is being assumed of the general populace by those who perceive a Roe backlash -- a group that includes Justice Ginsburg, who believes in a sex-equality-based constitutional right to abortion, but says that Roe's overreach retarded what otherwise was a growing state-by-state movement to legalize abortion in an increasing number of situations. I agree that the average person is not closely tied to originalism, textualism, pragmatism, living constitutionalism, etc. These are mostly academic notions superimposed on our politics.
What regular Americans do care about, however, is local control, or what the ivory tower types call federalism. This has been a feature of our politics since there was an America, and while it has diminished over time, normal people in Texas and New York still get pissed off that exterior majorities, or the Supreme Court, can force them to do something that the citizenry of that particular area doesn't want to do. One of the absurd aspects of the Schiavo drama was the intervention of the United States Congress in the proceedings of a Florida trial court that had found Mr. Schiavo's claims about his wife's wishes to be more plausible than her parents'. Even people who would have ruled in favor of the parents had they been the decision-maker looked askance upon Congress stopping its regular business in order to deal with this matter.
This instinctive desire for local control fueled backlash against Brown, but to a much greater extent against Roe, in a way that the -isms never could. Before Roe, people in Texas mostly were content to let heathen New Yorkers kill babies; it wasn't on the Texans' consciences. And it wasn't on the New Yorkers' consciences when Texas women desperate for abortions were killed or injured by unsafe abortifacients. I seriously doubt that the average Texan in 1970 could explain the difference between originalism and textualism; he just knew that what happened in his state was Texans' business and nobody else's. Roe nationalized the issue, putting people with strong objections to abortion in proximity to clinics that openly offered the procedure. Inasmuch as there's a legal theory, that's the one behind the backlash.
Mmm...I still think that the substance is the motivating factor here. Do you really think Operation Rescue would fold its doors if a local state court (or legislature) was the agent for legalizing abortion? That's not what they care about. For your hypothesis to hold, pro-lifers in Texas would have to be placated if abortion was legalized by the Texas Supreme Court, or even through the Texas legislature. But I honestly doubt the venue by which abortion is legalized would really dampen their ire in any meaningful respect. And on the flip side, if the Supreme Court had held that abortion was a violation of the 14th amendment's due process clause (because the fetus is a person), I similarly doubt we'd see pro-lifers lashing out about how the decision was taken out of their hands. It's the content that bothers them--procedure is secondary, at best.
I may not be making the point well. It is difficult to get a large, socially-acceptable group of people to fight something, if the majority of their near fellows all approved of it. The test actually can be a historical one -- how much Operation Rescue type activity was there in New York and California before Roe? Those were places where the citizenry had to some extent approved of abortion's legalization. If a large, vocal, socially-acceptable group of them had been protesting outside the places where abortions occurred, that would disprove my argument. (I keep emphasizing the "socially-acceptable" because there are a lot of kooks out there; Fred Phelps and his gang protested Matthew Shepherd's funeral, but they were not socially acceptable, which to me indicates that there was a lack of approval of actually murdering homosexuals at the time of that incident.)
But that's a question of tactical efficacy. Ginsburg's reservations about Roe are merely about whether it was the best way to get the policy she wants--its still the substance driving the procedure, not the other way around. Even if Roe ended up being a catalyst that stirred the sleeping anti-abortion movement, the underlying issue driving the debate is still the policy, not the "legal" arguments surrounding it.
If Ginsburg only cares that abortion be legal, why would she have any reservations about Roe? It has been controversial for over 30 years, yet its opponents never have mustered anything close to the political majority necessary to amend the Constitution to invalidate it. We may be getting closer to a Supreme Court that would overturn it, but that's still at least one justice away.
Ginsburg's reservations arise from concern about the privacy-driven argument for Roe (feminists traditionally are wary of "privacy" as the driving idea behind law's intersection with family matters, because it often was used to women's and children's detriment -- man's home is his castle, etc.), and about the lack of "buy-in" that Americans have to legal abortion. One can think that "X" substance is the right policy, while still preferring one method of getting to the substance over another. For example, I have a classmate who is somewhere between neutral-to-positive about same-sex marriage, but is *extremely* opposed to a declaration that same-sex marriage is a constitutional right. On the other hand, he's come up with proposals to get DOMA overturned because it will lead to the government's losing revenue as same-sex couples leverage their peculiar status of "married in Mass. but not in America." Substance matters, but so does procedure, and it's a lot easier to get allies for the substance if you convince them that there's a procedure they like that gets to the substance.