The demise of Roe v. Wade, and the leak that brought it to light

People are pissed that SCOTUS aborted Roe; other people are pissed that the decision was leaked ... two controversies for the price of one!

Politico magazine dropped one hell of a bombshell on the American public yesterday when it published what appeared to be a leaked U.S. Supreme Court decision penned by Justice Samuel Alito that would overturn Roe v. Wade, the landmark Supreme Court decision that guaranteed abortion rights in the United States.

Unsurprisingly, the decision produced a bevy of hot takes from both the left and the right. Americans are more or less evenly divided on the question of whether abortion is moral, so it shouldn’t come as any surprise that much of the discussion online is heated, angry, and lacks any semblance of nuance.

Let me say from the offset that I am pro-life. I don’t profess to be able to say with absolute certainty that a fetus is a human life, but I think in the absence of said certainty, one should err on the side of life. That said, I’d like to offer a few thoughts on the debate that I think come from a dispassionate, if somewhat biased, point of view.

First, one can support abortion rights and still think that Roe v. Wade was decided incorrectly. No less than Ruth Bader Ginsburg herself thought so (in fact, the leaked decision quotes Ginsburg directly). In a 1992 lecture she gave at the New York University School of Law, Ginsburg said:

The seven to two judgment in Roe v. Wade declared “violative of the Due Process Clause of the Fourteenth Amendment” a Texas criminal abortion statute that intolerably shackled a woman’s autonomy; the Texas law “except[ed] from criminality only a life-saving procedure on behalf of the [pregnant woman].” Suppose the Court had stopped there, rightly declaring unconstitutional the most extreme brand of law in the nation, and had not gone on, as the Court did in Roe, to fashion a regime blanketing the subject, a set of rules that displaced virtually every state law then in force. Would there have been the twenty-year controversy we have witnessed, reflected most recently in the Supreme Court’s splintered decision in Planned Parenthood v. Casey? A less encompassing Roe, one that merely struck down the extreme Texas law and went no further on that day, I believe and will summarize why, might have served to reduce rather than to fuel controversy.

Before Roe, abortion was a state issue — each state drafted its own laws regulating abortion. Ginsburg argued that the court should have merely struck down the bad, overly restrictive Texas law. Instead, the court pulled a supposed “right to privacy” out of thin air — there is no such right expressed anywhere in the U.S. Constitution — effectively legislating by fiat an absolute right to abortion.

That wasn’t their call to make. It was the state legislators’ call. It could have been federal legislators’ call as well — they could have passed federal legislation addressing abortion, or even amended the Constitution to allow for it. Of course, that would have been difficult to accomplish … which is exactly the point. Such sweeping legislative changes require significant consensus, and should not be enacted by a handful of unelected judges. So it’s unsurprising that Roe has fallen; it was built on a house of cards from the beginning.

Reading through the abortion debates spreading like wildfire through Twitter, I’ll admit that one argument in particular almost gives me pause. It’s the argument that women have a right to abortion because nobody has a right to a woman’s body — not even a child. If a woman does not consent to renting out the space in her womb to an unborn child, then she has every right to evict that child through an abortion.

I tend to lean libertarian on many issues, if not most, so I’m sympathetic to the bodily autonomy angle. But the question of abortion isn’t easily solved by applying a bodily autonomy lens or the non-aggression principle, because it’s complicated by the fact that, at least in the mind of pro-lifers, abortion involves two separate parties, each with its own rights. A woman has a right to bodily autonomy, yes, but a fetus also has a right to life.

A pro-choicer may argue that a woman being forced to host a fetus in her womb until giving birth is akin to a stranger forcing his way into her apartment and refusing to leave. Such an intruder is violating her rights by entering her home without her consent; she has every right to evict him from the premises, including, possibly, through the use of deadly force.

But that analogy doesn’t quite gel with the reality of abortion. Here’s an analogy I think is more apt: Imagine a stranger desperately seeking out shelter to escape an approaching hurricane. A woman sees him pass by, opens her door and invites him to come in to escape the storm. Once she invites him in, and the hurricane is directly overhead, would it not be immoral — would it not be tantamount to murder — for the woman to then change her mind and kick the stranger out where he would certainly die?

When a woman engages in consensual sex and becomes pregnant, she consents to the possibility that she may create a human life. In a sense, she has invited the child into her womb just like the woman in the hurricane analogy invited the stranger in to escape the storm. She must wait for the storm to pass before kicking the stranger out — in the case of a pregnant woman, she must wait for the child to be born before she can excise it from her life by giving it up for adoption. She cannot break the tacit contract she created by engaging in procreative intercourse by ending the child’s life.

Although I think abortion is immoral and, in an ideal world, wouldn’t exist at all, one pro-choice argument I do find persuasive is the idea that abortions will continue to occur regardless of the legality of abortion. For that reason, I’m skeptical that blanket bans on abortion can ultimately be an effective deterrent. Non-coercive reforms could probably have a greater effect: Expand access to contraceptives; cut the red tape that makes it difficult for families to adopt; provide support networks for single mothers in poverty (I think this could be done without government involvement, but we can hash that out).

Bill Clinton famously said that abortion should be “safe, legal and rare.” In an age where women are encouraged to “shout your abortion,” the left seems to have abandoned the idea that abortion, even if legal, is a somber affair that should be avoided if possible, in the absence of better options.

That’s a damned shame. I don’t want to see abortion doctors locked up, or women dying from seeking out back-alley abortions. But I would like to see a cultural change that would see abortion become vanishingly rare. One thing’s for sure, though: Whether the decision to overturn Roe v. Wade furthers that goal, or detracts from it, Roe was bad law and it was the right move to dump it into the dust bin of history. The only question now is … what will come after Roe?

The answer to that, surely, is more controversies. Stay tuned.