Comment: Sending abortion to states won’t bring compromise

It may be the right thing to do, but the issue will only further divide Americans, 50 times over.

By Clive Crook / Bloomberg opinion

If the Supreme Court overturns Roe v. Wade, as the recently leaked draft opinion suggests, arguments over how to regulate abortion will move from the courts to the legislatures, in Washington and 50 state capitals. Many critics of the decision, and even some of its defenders — I find myself in both camps — say this is where the debate belongs.

I wish I could agree. But I am not optimistic that America’s legislatures, as they actually exist, will guide the country to a better outcome.

The case for a legislative solution stems from the idea that it was a mistake for the court to arrogate such an intensely political issue to itself. When basic values are contested, they should be settled democratically, not by judicial fiat. Overturning Roe will therefore force legislatures to do their job, promoting discussion and compromise, instead of freezing a bitter unresolved conflict in place for half a century.

The problems with this theory begin with the fact that abortion implicates fundamental rights and liberties; those of women and (according to your moral convictions) the unborn. Understandings of fundamental rights and liberties should indeed be enshrined in constitutions: That’s what constitutions are for. But they should be written and amended through a representative process, not by judges.

Ideally, that process would give rise to a sufficiently strong consensus about rights and liberties, which would then shape the constitution, which judges would then apply to constrain the day-to-day actions of legislative majorities.

Ireland offers an example of how such a process can work. In 2018, the citizens of a rapidly secularizing country voted by referendum to change the constitution so that it no longer said a fetus has a right to life. Legislation to regulate abortions was henceforth allowed, and parliament passed a law permitting them to be carried out in the first 12 weeks of pregnancy, or later if the health of the mother was at serious risk. Voters supported the amendment by a 2-to-1 margin.

The new law — preserving, by the way, restrictions that most U.S. abortion rights campaigners would regard as intolerable — also commanded wide support. Controversy on the issue hasn’t ended, but it’s milder than in the U.S., and ordinary semi-functional politics resumed.

Is that the model? Such resolution is unimaginable in the U.S.; partly because amending the Constitution is impossibly difficult, but even more because the country is more closely and more furiously divided on the underlying moral issue.

Consider one likely scenario if (and when?) Roe is overturned. The most liberal states would provide abortion pretty much on demand. The conservative states would impose outright bans. Those in middle would strike a balance.

Whatever you think of that prospect, it’s no formula for constitutional stability or a more civil style of politics. Abortion policy, remember, implicates fundamental rights and liberties; rights and liberties that are, or should be, encoded in the Constitution. Remember too that Americans like nothing so much as litigation, which will require the involvement of the courts.

So every new effort to regulate or deregulate abortion will face legal challenge. Either this Supreme Court or one of its successors will be pressed to intervene. Overturning Roe v. Wade settles no constitutional aspect of the controversy. In fact, it militates against constitutional stability, both by further calling the court’s political independence into question and by repudiating the presumption of deference to precedent.

The outlook for calmer politics is no more promising. The controversy over abortion will most likely intensify. Positions on abortion and every other tribally divisive issue will harden. As the battle between Right and Wrong rages on every front, an increasingly polarized political system will indulge extremism, reject moderation on principle and leave the larger part of an exhausted electorate disenfranchised. No justice, no peace, as they say.

Abortion has crippled U.S. politics not because the Supreme Court presumed to hoist the issue away from legislators, but because the American system of government is in thrall to true believers who see any kind of compromise as defeat. A polity committed to this principle cannot settle, as Ireland and most other countries in Europe have, for muddled outcomes that acknowledge moral complexity.

So I’m afraid I can’t quite buy the notion that America’s politicians will do better than the judiciary on this issue. Right now I see no sign that they are interested in anything but deepening America’s divisions, on abortion and everything else, for partisan gain.

Clive Crook is a Bloomberg Opinion columnist and member of the editorial board covering economics. Previously, he was deputy editor of the Economist and chief Washington commentator for the Financial Times.

Talk to us

More in Opinion

Editorial cartoons for Sunday, July 3

A sketchy look at the news of the day.… Continue reading

FILE - In this Oct. 19, 2016 file photo, a man fishes for salmon in the Snake River above the Lower Granite Dam in Washington state. Three Republican U.S. House members from Washington state are criticizing Sen. Patty Murray, D-Wash., for opposing their legislation that would prevent the breaching of four dams on the Snake River to help improve endangered salmon runs. (Jesse Tinsley /The Spokesman-Review via AP, File)
Editorial: Waiting could force bad choice on dams, salmon

Work should begin now to begin replacing what four dams on the Snake River provide.

Comment: Making our celebration about ‘All Rights for All!’

A trio of 19th-century journalists demanded nothing less than an end to sexism, homophobia and racism.

Comment: Cutting through the haze of FDA’s fight with Juul

The FDA wants to bar its e-cigarettes over a lack of data, but can vaping help adults quit smoking?

Sullivan: Weekly 2 more newspapers close as ‘news desert’ grows

Without a reliable source of local news, false information spreads and democracy falters.

Editorial cartoons for Saturday, July 2

A sketchy look at the news of the day.… Continue reading

Dan Hazen
Dan Hazen: Political labels set fight, leave out the middle

‘Conservative’ and ‘liberal’ don’t address each sides’ true motivations and ignore collaboration we need.

Jeremy Steiner: Look again; you might see reason to celebrate

Despite our worries, Americans have a lot to celebrate as the nation marks its 246th birthday.

Joe Kennedy, a former assistant football coach at Bremerton High School in Bremerton, Wash., poses for a photo March 9, 2022, at the school's football field. After losing his coaching job for refusing to stop kneeling in prayer with players and spectators on the field immediately after football games, Kennedy will take his arguments before the U.S. Supreme Court on Monday, April 25, 2022, saying the Bremerton School District violated his First Amendment rights by refusing to let him continue praying at midfield after games. (AP Photo/Ted S. Warren)
Editorial: Court majority weakens church, state separation

The Supreme Court’s 6-3 decision does more to hurt religious liberty than protect a coach’s prayer.

Most Read