Should Politics Have Played a role in the Treatment of Roe v. Wade?

 

Most Constitutional scholars would not hesitate.  There is broad agreement that the abortion rights case of 1973 was wrongly decided.  That the Court made a political decision instead of pursuing sound legal analysis

Thus, in reversing the ’73 ruling, the current Court, in a 5-4 vote, corrected a 49 year old error.  The tally was not 6-3 because Chief Justice John Roberts thought that the case before it did not require such dramatic action.  And from a legal perspective, he was right.  The Court, given the views of the majority, need only have upheld the Mississippi law which banned abortions for a baby in the womb, in most circumstances, 15 weeks after conception.  But there was an unstated political reason for Roberts.  Don’t add to divisiveness in the country if such is not necessary.

The Sensible Conservative sides with the Chief Justice.  The Court is an institution which needs to maintain the respect of the broad public.  It is an integral part of our government and the crown on our judicial system.  That is a political objective and proper concern.  Plainly, and understandably,  millions of Americans are distressed by what they viewed as the revocation of an American right.  Of course, in many states – such as New York, California and Illinois – it remains one.  Yet Roe v. Wade was a symbol of good policy to its supporters (while of course that it was the product of judicial overreach doesn’t matter).  Their numbers can’t be ignored.

Conservatives should pursue policy changes, if involving matters of widespread concern and division, in a gradual, evolutionary matter.  That is much easier for those on the other side to absorb and rationalize.  Such an approach to change does not mean that the objective is abandoned, merely that the change occurring comes in a more palatable fashion and is thus less likely to fuel a heated opposition.  Don’t we have far too much of that already?

It would have been preferable for the nation’s sake if Roe v. Wade remained, but as a shell without substance.  That might have required legal sophistry.  But it would have contributed to a desirable political and national lessening of friction on the issue.  Despite what might be taught in law school, that would be a worthy result.

 

Note on slogans:

Realizing that “pro-choice” sentiment didn’t prevail, abortion supporters now promote the need to protect “reproductive health”, without noting the result for the unborn baby.