States rights

[Megan] The alleged logic of overturning Roe v. Wade is, for many libertarians, that it will throw the issue back to the states. There, states will rapidly use the legislative process to come to a compromise that makes the majority of people within their borders roughly happy, and both the pro-choice and pro-life groups will lose much of their energy.

This argument has a lot of appeal.  As one of my colleagues at The Economist pointed out, Europe had the same conversation as America about abortion in the sixties and seventies.  The difference is, European countries either passed laws, or submitted the question to referendum. Even those who weren't happy with the outcome felt the process by which it had been reached was legitimate. In America, neither group feels that the Supreme Court's process was morally legitimate--or at least, I infer that pro-choicers do not, since they seem to view an attempt to ban abortion by exactly the same process as a completely illegitimate usurpation of power by conservative ideologues.

Besides, the more local a problem is, the less anger it generates; American pro-lifers do not, after all, head over to England to hold their candlelight vigils, nor do pro-choicers fly to Germany to protest the country's near-complete (de jure, though not de facto) abortion ban.

But what if this doesn't happen, as Scott Lemieux has argued? What if Congress starts making abortion law? We'll see a substantial nationwide curtailment of abortion rights, then, without the decentralised decision-making that libertarians so love.

Certainly, no classical liberal is cheering the Supreme Court's decision to uphold the Federal partial-birth abortion ban. Even those who are pro-life (yes, there are some!) or like me, moderately pro-choice, are unhappy that any federal abortion statute would be upheld under the commerce clause. The procedure is so rarely performed that it's hard to view it as a sort of devil's bargain. And it bodes ill for any future in which Roe is overturned.

Still, you have to ask whether a Roe-less world with federal restrictions would be worse than than the status quo. The restrictions that could actually be passed at the Federal level would probably bring our abortion law roughly in line with the rest of the world's: no abortions after the first trimester, with exceptions for the life and health of the mother, mental health not being included in those exceptions. That wouldn't actually stop very many abortions, though obviously it would make unhappy anyone who thinks that you should be able to abort right up until the moment the doctor slaps it on the ass.

But even a suboptimal law--and I'm sure that it would be more restrictive than I'd like, since what I'd like is pretty much no restrictions--would probably be better than the current situation, because as in Europe, the process would legitimate the decision. It would burn out a lot of the energy on both sides for packing the courts in order to legislate from the bench by fiat. It would force legislators to actually put what they want right out there in the sunlight, rather than insulating themselves from accountability by standing behind nine people in black robes. I'm not saying that we wouldn't still have vigorous debate, because obviously, the period of deciding abortion laws would be even angrier than the current one. But at the end, you would have a law roughly acceptable to most of the population. The extremists on both sides, those who think they can still win the game of Supreme Court Chess with some surprise killer move and therefore need not compromised with the [great unwashed/heretics] in most of the country, will obviously not think that this is a great thing. But I'm not sure it sounds so bad to me.

And of course, it is also good for the process itself. The perception that the Supreme Court just gets to make shit up whenever it wants has not added to either civil discourse, or public faith in our institutions. That of itself might be worth the tradeoff.