Now is the time to stop joking about Roe.
Since the nomination of Chief Justice John Roberts last summer, a number of political commentators have suggested that the Democratic Party should do the unthinkable and abandon its support of the 1973 decision that upheld a woman’s right to choose. By allowing the Court to overturn Roe v. Wade, the argument goes, the Democrats would find a wealth of new support from alienated women voters — a boost in momentum that might enable the party to win the White House. These commentators argue that the losing side of the abortion fight, after all, finds itself at the greatest political advantage: Politicians can campaign on the promise that they will go to Washington and do their best to overturn the Court’s contemporary ruling.
The story does not end here. Proponents of such a move argue that a world without Roe would hardly be different than a world with Roe. This is because overturning Roe v. Wade would not criminalize abortion throughout the nation, but rather leave the question for Congress or, more likely, the 50 state legislatures — to decide. With the majority of national opinion in support of abortion rights, most states would vote to keep the practice legal. The few states that vote to criminalize abortion have very few abortion clinics in the first place, and women residing in those areas could easily travel to another state in which abortion is legal. With the right to abortion almost unaltered in this Roe-less world, Democrats can campaign with a clear conscience and force the Republicans into indefensible positions. The strategy is perfect. We win, you lose — thanks for playing the game of politics.
Before we paint the electoral map blue, however, let’s take a step back and examine the details more closely. Procedurally, overturning Roe v. Wade would require the Court to reject the premise that the right to privacy is protected by substantive due process in the 14th Amendment. Doing so would undoubtedly call into question the legitimacy of other rulings, such as Lawrence v. Texas, which depend on Roe to support their judgments. In the 2003 case of Lawrence, the Supreme Court held that a Texas law banning sodomy between members of the same sex was unconstitutional. The majority opinion referred to the precedent of Roe v. Wade — as well as more recent abortion rulings — to justify its ruling, arguing that these previous decisions reaffirmed the degree of liberty protected by the due process clause of the 14th Amendment.
Overturning Roe v. Wade, therefore, would have an effect far beyond the issue of abortion; it would put at risk all aspects of sexual privacy, such as contraception and homosexual conduct. Invasions into this latter example, in particular, would damage some of the Democratic Party’s key constituents. Put simply, if the Democrats knock the legs out from under the table, they will have to deal with the mess.
Perhaps more importantly, a number of states will criminalize abortion if Roe v. Wade was overturned. Sixteen states still have laws on the books banning abortion, and a survey by NARAL lists 18 states with hostile legislatures. For pro-choice advocates, this should be an immediate cause for concern. Rights are not measured quantitatively; granting a majority of women access to legal abortions while leaving some without that access is not a victory. If pro-choice Democrats truly see sexual privacy as a Constitutional right — on the same level as the right to vote — then there can be no degrees of success. There can only be success and failure.
Besides, the notion of cross-state abortions is an oversimplification. In practice, traveling to another state’s abortion clinics is not as easy as buying a plane ticket. While relatively wealthy and well-educated women will encounter little difficulty traveling out-of-state to obtain an abortion, other women will not. Take the example of a single mother who works two jobs in order to support her children — not an unusual example of an abortion candidate. Requiring this person to travel to another state would impose an insurmountable burden, leaving her stranded in a world without the right to choose.
Obviously, the proponents of the “Abandon Roe” plan speak in only a quasi-serious tone. In an age when no political memo goes unnoticed by the media, it is difficult to imagine how the Democratic Party could manage to pull off such a feat without alerting the public. Nonetheless, every joke contains a grain of truth.
The truth in this one — and it stings badly, so get ready for it — is that the Democrats’ stance on abortion does not bode well for politics. This is because in the American tradition, complex issues are decided by the judiciary rather than the legislature, thus allowing legislators to run on empty campaign promises. In the particular case of abortion, this setup leaves Democrats with the short end of the political stick. Although the Democratic Party certainly needs to remedy this problem, resigning Roe to the history books is not an option.
Howard Kim is a junior in Jonathan Edwards College.
Now is the time to stop joking about Roe.