First, the removal of Roe v. Wade would remove the misguided but nonetheless persistent and widely accepted argument that nearly unrestricted access to abortion must be a good thing because it is, after all, a constitutional right. By transforming abortion from a controversial and complex moral and political question into a constitutional entitlement, Roe v. Wade bestowed upon abortion the status (in the minds of many) of a positive good. It withdrew from the supporters of liberal abortion laws the obligation to frame an ethical justification beyond absolute claims of personal control and an extremely isolated view of individual autonomy. Once Roe is removed as a precedent, those who advocate unrestricted abortion could no longer simply cite the Supreme Court's ruling and regard that reference as obviating any need to discuss the morality of abortion or to consider the societal impact of hundreds of thousands of abortions performed annually. Second, after an initial period of confusion and probably heightened public distress, the presumptions in the argument about abortion would shift toward those who advocate protection of unborn human life. If advocates for unrestricted abortion were obliged to frame their arguments in terms of what is good and right, rather than being able to pull out the trump card of a constitutional right, the debate will focus even more tightly upon the merits, allowing the witness for life to be heard more effectively and more powerfully. Moreover, attention may be more effectively drawn to the moral side-effects of the regime of abortion-on-demand: irresponsibility in sexual conduct, evasion of obligations by putative fathers, devaluation of children, and intolerance for the dependent, "inconvenient" members of our society. By framing abortion as a nearly unqualified constitutional right, without fully considering the claims of human life, we have not taken a stride to a more virtuous, healthy, or free society. At present, Roe stands like a towering but tree over the landscape, leaving the underlying societal and moral questions shrouded in shadow.
Third, as long as Roe continues to loom over the constitutional landscape, any legislative measures that implicate abortion, even indirectly, also fall under its shadow. Limitations on abortion at any stage, prohibitions on partial-birth abortion, laws mandating medical efforts to save the lives of victims of abortion who survive the procedure, legal preservation of parental rights through notification requirements, laws protecting spousal rights, laws ensuring informed consent by provision of information concerning fetal development, and prohibitions on use of taxpayer monies to fund performance of abortions or abortion counseling, are subject to constitutional attack so long as the Roe regime persists. Thus, even aside from new legislative restraints on abortion, the current legislative movements toward protection of human life, even indirectly and imperfectly, would stand on firmer ground without Roe. Fourth, as a jurisprudential black hole that draws in and deforms everything that comes near its wandering path, Roe's gravitational pull has tended to collapse every nearby area of law into a pro-abortion singularity. In particular, the law of freedom of expression has been severely distorted, as the expressive rights of those who protest abortion, outside abortion clinics, for example, have been suppressed. In sum, constitutional jurisprudence in general will move onto a more healthy path once Roe v. Wade is overruled. Fifth, overturning Roe v. Wade would enhance democratic governance, the most fundamental freedom of all. If the most important questions that face us as a people, such as the basic question of life itself, are taken away from the people and reserved to a judicial oligarchy, then democracy in any meaningful sense has been lost.
The ability of the public to engage in political deliberation about such issues is undermined by removing them into the judicial arena. Granting the Supreme Court supremacy over fundamental questions of social and moral governance disempowers the people from full participation in their government. Constitutional litigation simply is not a friendly forum for a balanced discussion of the wide range of values and concerns relevant to disposition of a public issue. Litigation and adjudication force communication along a narrow path. The adversarial process encourages a winner-take-all attitude. The possibility of compromise is suppressed. The values of responsibility, respect for others, and moral character are largely missing from the rights-talk of the courtroom. I close by offering a warning. I anticipate that any overturning of Roe v. Wade would be followed by inflammatory rhetoric from "pro-choice" advocates, portraying the result as the death of civil liberties in the United States and the dawn of a moralistic and paternalistic tyranny. Given that support for abortion rights is nearly universal among the cultural elite, we should expect a full-throated and extreme reaction that would achieve, for a time, the desired apprehensive response from the general public, with a resultant effect on opinion polling about abortion. During that initial aftermath, a public that understandably is anxious about any significant change in the status quo (that is, a public that is naturally conservative in attitude) would likely be sincerely (if mistakenly) distressed by the judicial removal of a supposed constitutional right--although the overruling of Roe v. Wade would not prevent a single abortion from taking place, but would merely allow the people in the exercise of their democratic rights to consider what is the most appropriate answer in social and moral terms.
If and when Roe v. Wade is overruled, and if the public should react initially with anxiety, provoked by extreme rhetoric from the cultural elite, those of us who stand for the dignity of all human life should respond firmly but calmly. We should not be discouraged by temporary trends. Slowly the public will discover that any parade of horribles marched out by the media simply is not being realized, that dictatorship has not emerged, that women are not being rounded up and forcibly removed from public life, that decades of progress in equality between the genders has not been reversed, and that freedom has survived. The general public will appreciate that the Supreme Court, by overturning Roe v. Wade, was taking nothing away but rather was returning a subject of great moral concern to democratic deliberation, allowing the people to chart their own course and create a culture of life.
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