Roe and the Culture War

By Ross Douthat

There's been a lot of interesting conversation inspired by Damon Linker's long post on ending the culture war, and specifically his suggestion that overturning Roe would lead, eventually, to greater political peace on the abortion issue. Here's Damon's take on the psychology of the pro-life movement:

Some Americans believe that an abortion is an act of lethal violence against an innocent human being whose rights (like everyone else's) should be protected by the state. Other Americans believe that the only legally relevant moral considerations in an abortion are the wishes of the pregnant woman -- which of course presumes that the fetus is not a human being in need of protection against lethal violence. These are contrary and incompatible metaphysical assumptions about matters of life and death and human dignity. On January 22, 1973, the Supreme Court declared that the fundamental law of the United States affirms the position of the second group and rejects the views of the first. On that day, the Constitution ceased to be neutral on this matter of metaphysics.

The pro-life movement, which overlaps to a considerable extent with the modern religious right, was conjured into being not by the fact that some states prior to 1973 permitted abortions but by the Supreme Court's assertion that the metaphysical convictions of abortion opponents are incompatible with the nation's fundamental law. The pro-life movement is thus in large measure an expression of identity politics. It amounts to a spirited refusal on the part of a group of Americans to accept that its views are constitutionally unacceptable. Pro-lifers are saying, in effect: "This is my country, too, and so you are wrong to think that We the People affirm the right of a mother to murder her baby. We the People affirm no such thing."

I can certainly recognize my own feelings about the issue in this description. It's hard to come up with a parallel case that isn't hopelessly imperfect and/or loaded, but I think that liberals interested in imagining their way into the pro-life psyche might start with the kind of alienation that many of them experienced during the Bush years ... then imagine a Supreme Court ruling that wrote a blank check for interrogation into the U.S. Constitution, so that no act of Congress could touch the President's right to torture ... and then further imagine that waterboarding and worse things became a routine, rather than extraordinary, aspect of American counterterrorism and law enforcement efforts over subsequent years and decades.

Allowing, again, for the immense imperfection of the analogy (yes, the government performs torture and merely allows abortion; yes, the number of waterboardings would never, ever approach the number of abortions; and so forth) this is roughly the kind of landscape that pro-lifers have inhabited for thirty-five years: Not only is the law of the land hostile to our convictions, but those convictions are officially deemed beyond the constitutional pale and thus essentially un-American. Symbolically alone, this would be a galvanizing force for any political movement. But the constitutionalization of abortion policy makes a substantive difference, too, or so pro-lifers believe: When you actually poll Americans, or contrast our abortion laws with those on the books in countries that are in other respects more socially liberal than we are, the most plausible "compromise" on the issue absent Roe looks substantially closer to the pro-life position than the legal regime we have now. Which leaves pro-lifers convinced that the Supreme Court's jurisprudence has done to abortion policy what liberals think David Addington and company tried to do with the President's power to order torture - it's taken a distinctly minority opinion about a fraught issue and insisted that it's the only position the American government is allowed to take.

Overturning Roe, then, would have a double effect on pro-lifers - it would simultaneously remove the alienating impact of a legal regime that tries to read our views out of the political debate entirely, and enable us to put our theories about American public opinion on abortion and what kind of legal restrictions are possible to the test. Whether this would de-escalate the abortion wars in the long run is obviously hard to say. I suspect that the Linker thesis is correct, and that a short-term spasm of abortion politicking would give way to greater calm on the issue; certainly, I imagine that I would personally feel a lot calmer about the issue if it were de-constitutionalized, whether or not doing so led to the kind of legal gains that I think pro-lifers can reasonably hope for. But there's no way to know for sure.

Either way, though, I don't think that the hope of calming the culture wars should prompt liberals to support overturning Roe. If you're an unconflicted supporter of abortion rights, obviously, then you shouldn't support overturning the decision, period: If second-trimester abortion is really a fundamental human right, then there's no reason to risk it's availability for some nebulous hope of a less polarized America. And if you are conflicted about abortion's moral and legal status, as many liberals claim to be, then you should want Roe overturned because, well, it's the right thing to do: Because it's absolutist, anti-democratic, and a stumbling block to any enduring middle ground. The question of social peace, in either case, ought to be strictly secondary; what matters is whether Roe is legally sound, and morally acceptable. And if you think of yourself as being in the muddy middle on abortion, your answer to both questions ought to be "no."

This article available online at:

http://www.theatlantic.com/personal/archive/2009/02/-em-roe-em-and-the-culture-war/55941/