Roe backers shouldn’t focus on Constitution

I somehow doubt that any of Yale’s pro-lifers, surely an endangered species at this university, were convinced to change their minds by Yale’s celebration of “Roe v. Wade Week.” The commemoration of the 34th anniversary of Roe last week (which apparently featured a workshop on manual vacuum aspiration, to Sean Hannity’s delight) was nevertheless an opportunity for most of us to spend seven days feeling slightly warmer and fuzzier about the visible display of support for women, their rights and their choices.

Let me be clear: I’m glad Yale has students who are willing to spend time and energy fighting to keep abortion legal. As an issue of public health and gender equality, even after so many years, it’s hard to find an issue of more paramount importance. Modern society fundamentally requires that its citizens be able to decide when they are ready and willing to raise children. Put another way: A woman should never have her life completely uprooted just because her boyfriend’s condom happens to break. Making abortion an option for women allows them the freedom to pursue careers and lives of their choosing, rather than having biology choose for them. Keeping abortion legal is also a recognition of the stark fact that abortions will happen, whether they are legal or not. Even the most Bible-thumping parents would probably prefer that their daughters use a credentialed doctor over a back-alley abortionist.

I could, of course, fill up an entire column with a litany of good reasons to keep abortion legal. Frankly, on this campus, in this newspaper, that would be superfluous, boring and a good way to ensure that you impatiently move on to whatever diatribes other Yalies have penned for your reading pleasure today.

So what’s my problem with “Roe v. Wade Week at Yale?” Just this: It’s called “Roe v. Wade Week.”

Ever since Justice Harry Blackmun wrote his landmark decision in Roe, the national women’s equality movement has seized on the case as one of the century’s most important benchmarks for social progress. There’s just one small problem: Blackmun’s Roe v. Wade opinion is a constitutional disaster.

Blackmun famously justified Roe by inferring a generalized right to privacy between the lines — or the “penumbra” — of the Constitution. The existence of such a generalized right is dubious under the best of circumstances. Justices are on the strongest ground when they use it to safeguard the right of individuals to engage in certain objectively harmless behaviors (such as the use of birth control or the act of sodomy) that the majority of voters might nevertheless find personally distasteful. The trouble is that, as Blackmun himself emphasized in his decision, the state has to balance on the one hand a woman’s “right to privacy,” and on the other hand its “important and legitimate interest in protecting the potentiality of human life.” To try to resolve this tension, Blackmun pulled several large constitutional rabbits out of his hat, decreeing that abortion must be legal in the first trimester, but not necessarily after that.

Blackmun’s decision might have made an excellent law. The problem is that it wasn’t — it purported to be a Supreme Court decision interpreting the Constitution. Pro-lifers who read the decision were understandably left scratching their heads as to why a woman’s right to privacy could under some circumstances override “the potentiality of human life” (again, Blackmun’s own words). How could any justice, using strictly the text of the Constitution, or even an “evolved” 20th-century version of it, possibly make that call?

This is not just an academic point. The Supreme Court’s 1973 decision has been terrific for pregnant woman, and slightly less so for our national judiciary. The sudden willingness of the Supreme Court to illegalize abortion based on a new interpretation of the Constitution has been a driving factor in converting Supreme Court nominations into the polarizing partisan slugfests they have become.

My question is this: Why are we on the pro-choice side of the battle so determined to win this fight in the courts? Why are we determined to fight our battle on constitutional grounds, exactly where we are weakest?

Forget Harry Blackmun and his cockamamie theory of trimesters. The abortion debate is not about the right to privacy. It has nothing to do with privacy. It’s about the right of women to determine their own futures — not a right that’s wedged in under search and seizure, but still pretty important. Why are we so convinced that the American people don’t understand that? Polls show that Americans overwhelmingly think abortion should be legal. Even in a state as conservative as South Dakota, as the abortion-rights groups pointed out endlessly last week, an outright abortion ban was comfortably defeated.

Rather than hide behind Blackmun’s convoluted logic and let the opponents of abortion use “elitist judges” as a punching bag and red herring with which to distract people from the real issues, why not try to win this fight the good old-fashioned way — through democratic elections? The best plausible rationale for using courts — that the rights of a minority are under siege — is hard to swallow when you consider that half of the voting population lacks a Y chromosome.

This is a fight we can win on the ground. It would be nice to try. Next year will be the 35th anniversary of Roe v. Wade. If the Yale Reproductive Rights League were smart, it would commemorate the date by urging that Roe be overturned. The right to an abortion is a sacred cow. Blackmun’s shoddy legal reasoning shouldn’t be.

Roger Low is a senior in Branford College. His column appears on alternate Thursdays.

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