McArdle: Roe v. Wade’s ‘settled law’ has unsettling effects

By Megan McArdle

The Washington Post

Supporters of abortion rights are fond of saying that Roe v. Wade is “settled law.” The phrase is supposed to convey a finality that borders on irrevocability. But, of course, what the Supreme Court gives, the Supreme Court can take away. That appears to be the reasoning behind the new laws passed in Alabama and Georgia, which would virtually outlaw abortion in both states.

Obviously, these laws will be challenged by abortion-rights activists; just as obviously, the laws will be struck down by lower courts, whereupon Alabama and Georgia will appeal all the way to the Supreme Court. And shortly thereafter, the country will probably find out just how settled Roe v. Wade really is.

The showdown looms because Justice Brett Kavanaugh now occupies the Supreme Court seat once held by the now-retired Anthony Kennedy. Pro-lifers and pro-choicers alike suspect that Kavanaugh is less supportive of sweeping abortion rights than Kennedy was. But the confrontation arguably was inevitable from the moment Roe was decided in 1973; the settled right may actually have been inherently unstable. When the court finally rules and all the shouting has stopped, we may eventually come to wonder whether it could ever have turned out any other way.

No legal case has done more than Roe to define how the left sees the Supreme Court: not as a somewhat boring final arbiter of words recorded in law books, but as the oracle that tells us what rights the Constitution ought to guarantee. Consequential cases such as Brown v. Board of Education (1954) and Miranda v. Arizona (1966), concerning racial segregation and the rights of police suspects, respectively, dealt with matters that clearly involved the Constitution. There was no question that resolving just such ambiguity is the Supreme Court’s job.

But by the 1970s, the court was, one suspects, a little drunk on the moral and legal triumph of those earlier cases. The justices were now going well beyond the words in the law books and into the unwritten law of what used to be called “enlightened opinion.” In 1972, they abolished the death penalty in all 50 states, even though the Constitution clearly contemplates government-administered capital punishment.

The following year, the justices gave the country a new right to abortion. The right is nowhere mentioned in the Constitution, but had apparently been lurking there undetected for the better part of two centuries before the justices finally coaxed it into the open. From this era dates the solemn invocations of “settled law” issued by “the highest court in the land.”

That view of constitutional interpretation works precisely as long as you happen to agree with the judicial interpreters. When the other side of the political spectrum gets wise and starts stocking the courts with judges who share their opinions: Catastrophe! Ruination! Citizens United!

Which makes this a good time for the left to step back and ask whether it was ever a good idea to urge such sweeping powers on unelected judges. The benefit of going the judicial route is that you can occasionally achieve outcomes you could never obtain through legislatures; that is how America, a center-right nation, got one of the most liberal abortion regimes in the world. The problem with going the judicial route is that it short-circuits public debate and forces the opposition to take radical action — like, say, a decades-long project to fill the courts with right-leaning judges — to amend that “settled law.”

The consequences of the counterreaction can go well beyond the issue at hand. If not for Roe, it seems eminently possible that the conservative-court project would have been less urgent, and the decisions in District of Columbia v. Heller on gun rights or Citizens United on campaign finance might never have happened. If it hadn’t been for Roe, evangelicals might also have balked at electing Donald Trump.

Of course, if it hadn’t been for Roe, there also wouldn’t have been more than 50 million abortions since 1973; whether that’s a good or bad thing will be left as an exercise for the reader. But many abortions would have been performed anyway, because before the court took the issue away from voters, polls showed public opinion steadily trending in favor of legalized abortion, and the procedure was already legal in several states.

If the Supreme Court hadn’t intervened on abortion, political debate might have sorted voters along a spectrum, rather than forcing them into the unforgiving yes-no binary. And if you fear you’re about to end up on the wrong side of that binary, you might wish your side had settled for something less grandiose, but more enduring.

Megan McArdle is a Washington Post columnist. Folllow her on Twitter @asymmetricinfo.