Jeffrey Rosen repeatedly labels as “draconian” measures that would protect unborn children and guarantee their most basic human rights (“The Day After Roe,” June Atlantic). From the standpoint of these children, it is our current abortion jurisprudence that is draconian. During the first nine months of a child’s life, the present system offers virtually no legal protection against being killed.
The oft-heard response that children in the prenatal stages of development are not actually persons is illiberal, to say the least. This is the same argument that was used against African Americans in the Dred Scott case. The Supreme Court held that Negroes had no rights because they were not really persons.
Advocates of legal abortion may reply that the African Americans in question were already born, whereas unborn children are still inside their mothers’ bodies and therefore are not yet persons. But this argument merely substitutes age for skin color as the criterion by which we may deem someone a nonperson and claim him or her as our private property to dispose of as we please. In both cases, an arbitrary line has been drawn to exclude a whole class of human beings from the community of our common care and concern.
In Jeffrey Rosen’s view, a future Supreme Court decision overturning Roe v. Wade would merely “allo[w] the states to ban or restrict abortions from the very beginning of pregnancy,” and in most states, “early-term abortions would be protected and late-term ones restricted.” But there is no assurance that a decision overturning Roe would be that deferential to the legislative process. Rosen’s pro-democratic vision reminds me of a debate early this year in Manhattan on the Alito nomination, sponsored by rival groups of lawyers, the Federalist Society, and the American Constitution Society. The pro-Alito advocate repeatedly argued against Roe v. Wade on the grounds that democratically elected state legislatures should shape our responses to morally sensitive life-and-death matters like abortion. However, when asked whether the Oregon assisted-suicide law, enacted by such a legislature and twice upheld by referendum votes, should be upheld out of deference to state legislatures, she backed away and, much like Chief Justice John Roberts, argued that in that case the federal interest in regulating lethal drugs could override democratic lawmaking.
Her reply suggested that when pro-lifers are faced with a choice between rule by state legislatures and rule by federal judges, their only meaningful standard is the desired pro-life result. While I respect the pro-democratic logic of Rosen’s analysis, I don’t think he has considered the extent to which many pro-life lawyers and judges have decided that their moral vision trumps deference to democracy and legislators.
Jonathan S. Gellman
Jeffrey Rosen replies:
As these letters suggest, there are entrenched views on both sides of the abortion issue that are not likely to be changed by democratic debate. My piece suggested, however, that if Roe were overturned, legislatures would eventually—although not immediately—reflect the more moderate views of the majority of Americans, protecting the right to choose abortion early in pregnancy and restricting it later in pregnancy.