If Judge
Samuel Alito is confirmed, are we entering a post-Roe
era?
Maybe not
quite yet. Even if Alito proves, as his critics fear, to be a
reliable vote against Roe v. Wade, we are still likely
one vote short of overturning that Supreme Court decision creating
a constitutional right to abortion. But Alito's confirmation in
spite of what The New York Times finds "obvious"
-- e.g. "that Judge Alito would quickly vote to overturn
Roe v. Wade" -- in itself proves that Roe
is anything but "settled" law.
Americans'
commitment to the rule of law, and our faith in our own institutions,
means that over time Americans typically come to accept even controversial
Supreme Court decisions. But 30 years after Roe, abortion
remains a uniquely unsettled and unsettling issue to most Americans.
If you'd like to see
for yourself how unsettled Americans are about abortion, check
out this compendium of recent abortion polls: www.pollingreport.com/abortion.htm.
A Gallup poll from
Jan. 9-12, 2006, for example, found that 59 percent of Americans
say they think abortion laws should be either "less strict"
or "stay the same" (compared to 38 percent who chose
"more strict"). On the other hand, a CBS News poll taken
Jan. 5-8 found that only 27 percent of Americans would permit
abortion in all cases; 15 percent say permit abortion "subject
to greater restriction than it is now." Thirty-three percent
say permit abortion "only in cases such as rape, incest and
to save the woman's life," and 17 percent said abortion should
be permitted only to save a woman's life. That adds up to 65 percent
of Americans favoring legally restricting abortions.
So which is it: Do
65 percent of Americans or 38 percent of Americans favor greater
restrictions?
Depends on what day
you ask.
Abortion
is the issue that won't go away because it is not a right that
most Americans feel very good about having or using. The rhetoric
of liberalism turns against itself on the abortion issue; phrases
such as the "right to be left alone," "bodily integrity"
and "equal rights" always carry within them, acknowledged
or unacknowledged, a shadow critique of abortion in a liberal
democracy. (The same New York Times editorial that denounced
Alito for his abortion stand also unself-consciously accused him
of "a history of tilting the scales of justice against the
little guy," not apparently noticing that there is hardly
a littler guy around than human life in the womb.)
Among the
left, there is now talk of "Roe fatigue," as
one blogger put it at the Talking Points Memo Cafe this November.
Abortion rights stalwarts like law professor and author Susan
Estrich and columnist Katha Pollitt feel obliged to ask, as Pollitt
put it in The Nation last August, "Should Roe
Go?" "With the resignation of Sandra Day O'Connor, more
people are asking that question. Democratic Party insiders quietly
wonder if abandoning abortion rights would win back white Catholics
and evangelicals. A chorus of pundits ... argue that Roe's
unforeseen consequences exact too high a price: on democracy,
on public discourse, even, paradoxically, on abortion rights."
By most analyses,
the end of Roe would benefit Democrats, not Republicans:
"Overnight," Estrich (who, like Pollitt, supports Roe
anyway) asserted, "every election, for every state office,
would become a referendum" on "whether regular old middle-class
adult women could get first-trimester abortions. When you think
about it that way, you have to ask: What could be better for Democrats?"
Maybe so. But what
could be better for this country than an honest debate about what
we think about abortion and how the law should treat it? Let the
political chips fall where they may.
Whether Republicans
or Democrats will benefit, with Alito's confirmation one thing
will be clear: The days of Roe v. Wade are numbered.
Copyright
2006 Maggie Gallagher
