Two Editorials on Abortion - Editorial #2

The fate of Roe v. Wade and choice
By Cass Sunstein (Cass Sunstein is a professor of law at Harvard Law School and an informal adviser to the Obama campaign.) September 14, 2008

THE RIGHT to reproductive freedom has played an occasional role in many presidential campaigns, but its fate is likely to turn on the 2008 election. Republican presidential candidate John McCain vows to "return the abortion question to the individual states" and then "to end abortion at the state level." The new president will probably be in a position to appoint at least one and perhaps as many as three new justices. With an excellent chance to reconfigure the Supreme Court, McCain, if elected, might well be able to get what the antiabortion movement wants - and more fundamentally, numerous changes in other areas of constitutional law as well.

Those who seek to preserve the right to choose ought to be prepared to make some distinctions. As it was written in 1973, Roe v. Wade was far from a model of legal reasoning, and conservatives have been correct to criticize it. The court failed to root the abortion right in either the text of the Constitution or its own precedents.

Moreover, it ruled far too broadly. In its first encounter with the abortion question, the court failed to focus on the particular abortion restrictions at issue, some of which were unusually draconian, forbidding abortion even in cases of rape. Instead, the court took the highly unusual step of a setting out a series of rules for legislatures to follow.

It is no wonder that millions of Americans felt, and continue to feel, that the court refused to treat their moral convictions with respect. Nor is it surprising that Justice Ruth Bader Ginsburg - the most important women's rights lawyer in the history of American law, but also a judicial "minimalist" - has sharply criticized Roe for doing so much so fast.

But it is one thing to object to Roe as written in 1973. It is another to suggest that it should be overruled in 2008. American constitutional law is stable only because of the principle of stare decisis, which means that in general, the Court should respect its own precedents.

Roe v. Wade has been established law for 35 years; the right to choose is now a part of our culture. A decision to overrule it would not only disrupt and polarize the nation; it would also threaten countless doctors, and pregnant women and girls, with jail sentences and criminal fines. As Ginsburg has also urged, Roe v. Wade is now best seen, not only as a case about privacy, but also as involving sex equality.

No one should disparage the convictions of those who believe that abortion is an immoral act. But after more than three decades, a decision to overrule Roe v. Wade, and to throw an established domain of human liberty into turmoil, would be anything but conservative. It is relevant here that many people, including McCain running mate Sarah Palin, believe that abortion is unacceptable even in cases of rape and incest, and there is little doubt that if Roe is overruled, some states will enact that belief into law.

For the future of constitutional rights, there is a broader point, which involves the fragility of many constitutional principles. Of course the Supreme Court tends to move slowly, but some conservatives who speak of "strict construction," and of "legislating from the bench," have something quite radical in mind.

For them, these are code words. They seek to appoint judges who will overturn not merely Roe, but dozens of other past decisions. For example, they want judges to impose flat bans on affirmative action, to invalidate environmental regulations, to increase presidential power, and to reduce the separation of church and state. Some Republican appointees to the Supreme Court have already called for significant changes in constitutional law in these domains.

Does all this sound like "strict construction"? Actually there is an uncomfortably close overlap between the constitutional views of some recent Republican appointees to the federal judiciary and the political views of those on the extreme right-wing of the Republican Party. There is a good chance that a newly constituted Supreme Court would entrench some of those views into constitutional law.

It is inevitable that the principal debates between McCain and Democratic candidate Barack Obama will involve the economy and foreign policy. For most voters, the Supreme Court is simply too abstract. But we should not overlook a crucial point: The fate of Roe v. Wade, and of countless principles in constitutional law, is now hanging in the balance.