Defending Choice: Why It Is Good Politics

As the chickens came home to roost with Justice Alito casting the deciding vote today in the SCOTUS' upholding of a federal ban on a pregnancy termination procedure used primarily late in the pregnancy term, I thought I would trot out a post I wrote on the politics of choice, when the Alito nomination was pending.

The post:

Just as in every other Supreme Court nomination, the ScAlito nomination has at its center the issue of Roe v. Wade. Many other issues of course are always significant, but Roe is the touchstone. Inevitably, at least here, the arguments lead to whether it is "good politics" for Dems to support Roe. Of course, for many if not most of us, politics simply won't be a consideration on the issue. But I also think these folks are wrong to argue that Dems should retreat on Roe.

Before I tell you why I think so, let me excerpt part of a fascinating discussion that was held by Law Professors Sanford Levinson and Jack Balkin on just that issue:

As already suggested, though, my concerns about Roe, and whether the Democratic Party should continue to expend a great deal of political capital on keeping it on the books, have less to do with specifically legal concerns--i.e., what constitutes the best interpretation of the Constitution?--and far more to do with the politics of the abortion issue in 2005 and beyond. I am increasingly persuaded that the principal beneficiary of the current struggle to maintain Roe is the Republican Party. Indeed, I have often referred to Roe as "the gift that keeps on giving" inasmuch as it has served to send many good, decent, committed largely (though certainly not exclusively) working-class voters into the arms of a party that works systematically against their material interests but is willing to pander to their serious value commitment to a "right to life." . .. [P]rofessional politicians are well aware that most of the country in fact supports the clumsy compromises stumbled into over the past 30 years, largely through the aegis of Sandra Day O'Connor.

From a crass political perspective--i.e., a concern with electoral success--the best thing that could happen to the Democratic Party is the overruling of Roe and the full "politicization" of abortion. Confirmation of this view was recently provided by Rep. Thomas M. Davis III, a Virginia Republican, who told a breakfast hosted by the Christian Science Monitor that the overturning of Roe would likely produce "a sea change in suburban voting patterns." He is almost certainly correct.

This is the standard "why Roe helps the Republicans argument, and, as far as it goes, it has its logic. But it is wrong. Most have seen the many renderings of my Politics of Contrast/Lincoln 1860/Fighting Dems strategy. This is, as you no doubt would expect, central to my argument.

I think Jack Balkin's response to Levinson hints at why it is wrong but doesn't go the full distance:

[T]his fails to account for how Roe would be overruled in practice. Imagine how one would "give up." You can't send secret signals to the liberal justices saying "psst, hey Ruth Bader Ginsburg, take a fall on the next abortion case." Rather, giving up on Roe means not opposing new Republican judicial nominees who are committed to overturning Roe (as opposed to merely limiting it). But those sorts of judges will likely oppose much of the other existing jurisprudence on sexual autonomy. The opinions they write will likely emphasize that it is wholly illegitimate for courts to discover and enforce rights not specifically enumerated in the Constitution (unless, of course, it's unenumerated rights that conservatives happen to like! See the federalism decisions). Whether or not cases like Lawrence are technically distinguishable by well-trained lawyers, they may not be distinguishable in the view of the new Supreme Court majority.

It gets worse. The same sorts of nominees who are ready to overrule Roe today (i.e., people like Clarence Thomas and Antonin Scalia) are also going to vote against a large number of other constitutional rights that Democrats and liberals care deeply about. Giving up on Roe means giving up on those rights as well; or to put it another way, whether a Republican nominee seeks to overturn Roe is a good proxy for that nominee's positions on a wide range of other constitutional questions.

And that's not all. Mark Graber has pointed out that constitutional questions often get settled when one side gives up. Similarly, Bruce Ackerman argues that this is when important "constitutional moments" occur. Giving up on Roe means that Democrats would be in the same position as Republican critics of the New Deal in 1940, or Andrew Johnson, who opposed the Fourteenth Amendment, in 1868. This time we progressives would be performing the "switch in time," capitulating to conservative ideas about what the Constitution means. Roe would enter what Sandy and I call the "anti-canon"; it would become the canonical example of how one shouldn't decide constitutional cases. Roe would become the modern day analogue of Dred Scott and Lochner v. New York and Plessy v. Ferguson and Adkins v. Children's Hospital--the key cases that law professors teach their students were wrong, perhaps even "wrong the day they were decided." Many of Roe's most vocal opponents currently believe this, but most people in the country, thankfully, do not. Now imagine a constitutional culture in which Roe is generally agreed to be just like Plessy or Dred Scott, where it is generally seen as the modern canonical case of bad constitutional decision making. Do you really think that in such a culture other rights and other decisions that Democrats and liberals care about would be safe? Do you really think that Roe v. Wade is that isolated from the matrix of concerns at the heart of the progressive agenda

What is Balkin saying here? Simple. It requires an extreme judge fully out of the mainstream to overturn Roe. And such a judge will not be extreme just on Roe. He'll be extreme on Griswold. Extreme on the Commerce Clause. Extreme on Separation of Church and State. Extreme on the Fourth Amendment.

Who were the Justices who recently voted for overturning Roe? Scalia. Thomas. Rehnquist. That is the type of Justice who wants to overturn Roe.

But so what? you say. What does that have to do with the politics of Roe? This, Democrats can only be the Rational Party, the Moderate Party, the Sane Party if they stand firmly against the extremists. Given the feeling of the American People that Democrats don't stand for much imagine what they will think if Dems stop fighting for the right to privacy! Why then would a moderate voter look to Dems to protect them against the Extremism of the Republican Party?

In short, to give up on Roe is to throw away any notion the American People have left that Dems stand for anything. It is to rip apart the progressive wing of the Party and fracture Democrats in a way that was last seen when the civil rights laws were passed.

See, we have already had our split on privacy and abortion . Single issue anti-choice voters are Republicans. And they will never be anything else. The mistake that is made by Levinson is to assume that by putting abortion rights in play in the legislative arena this will automatically deliver all pro-choice voters to the Democrats. NOT IF THE DEMS ARE COMPLICIT IN DESTROYING THE WOMEN"S RIGHT TO CHOOSE! They will flock to those who will protect what they value. Dems giving up on Roe destroys the idea of Dems as protectors of women's rights. Those voters who suddenly find that the right to choose is in jeopardy are not likely to run to Democrats just as voters in 1856 and 1860 did not run to the Whigs and other politicians who sold out on slavery.

So let's consider the probable political effect of a Dem cavein on Roe -- (1) complete alienation of the progressive wing of the  Party - bad. (2) Laws banning abortion in the South and other Red States - neutral for Dems politically.  (3) No such laws in Blue States where Republicans will be permitted to be pro-choice - neutral for Dems.

Where's the big uptick for Dems? Only one scenario provides it - a Republican push for a federal law banning abortion. Blue states will recoil from this. Guess what? Dems HAVE THAT OPPORTUNITY NOW! Why are we not using the Politics of Contrast now!

Indeed, if the "give up on Roe scenario  is played out, we will not have that opportuniy afterwards! The  fight is now. The contrast is now.

Fighting for Roe now is good politics as well as the right thing to do.

NOT fighting for Roe now is disastrous politics and the wrong thing to do. As Eugene at My Left Wing has said, it is the policy of the Whig Party, circa 1854. and we all know how that ended for the Whigs.

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    you're missing the bigger pic/pie du jour (none / 0) (#1)
    by Miss Devore on Wed Apr 18, 2007 at 11:01:47 PM EST
    I mean, fer instance,the many incensed female bloggers at traditional sites like dk, mlw, bmt and  of course, at Marisacat's OG&P (she is the OG on this) and other Viper Affinity Group (VAGs) places.

    czech out today, for further insight.

    to speak of something as abstract as "good politics" when a significant portion of the polis is up in arms, is to be a bit......you know.

    whoops (none / 0) (#2)
    by Miss Devore on Wed Apr 18, 2007 at 11:03:36 PM EST
    after "czech out today, for further insight" should be this link:


    politics of choice (none / 0) (#3)
    by diogenes on Thu Apr 19, 2007 at 03:06:41 PM EST
    The Repub base and Christian Right have been pretty disgusted and disappointed with Bush and the GOP.  The more the netroots rant about this decision the more the GOP base will realize that they should not sit on their hands as they did in 2006 because it really does matter who is elected president in 2008.

    Nicely said (none / 0) (#4)
    by glanton on Thu Apr 19, 2007 at 03:33:30 PM EST
    In short, to give up on Roe is to throw away any notion the American People have left that Dems stand for anything. It is to rip apart the progressive wing of the Party and fracture Democrats in a way that was last seen when the civil rights laws were passed.

    And when Roe is gone (it will be gone soon, as Pro Choicers and Pro Lifers on this board seem to agree), the Democrats are going to have to talk about it.  A lot.  

    I predict that when Roe is overturned that afgter the initial media blitz, there will be a relatively quick trend especially in the television media to back off and stop talking about it.  Let's face it, people on both sides don't like to talk about it.

    But high profile Democrats must not give in to the temptation to let the story slide away as though it were a mildly more important story than, say, the Natalee Holloway coverage.

    One political benefit of talking about it a lot would be that we might get more of what we got in South Dakota--keep reminding voters what is at stake, shine the spotlight, and just hope hope hope that Peaches is right in his assertion that most Americans will be counted as supporters of a woman's right to choose.

    State legislators, in other words, must not be permitted to pass some law in the same way that the Patriot Act was passed, funnelled through chambers with politicians not even reading the language and then boom it's on the books with very little public interrogation.  

    This is big.  It deserves to be treated as such.  I hope that my compadres on this board who disagree with me on abortion rights are just as anxious that there be widespread national discussion and much media scrutiny to drive it, long before the ink dries on anything binding.

    I think (5.00 / 1) (#5)
    by Peaches on Thu Apr 19, 2007 at 04:06:09 PM EST
    I became more of a pragmatist on this and many issues on the left once I realized that trends indicated that the Supreme Court would eventually overturn ROe vs. Wade. It made me realize that we should get prepared for the day. It seemed the tide was going in that direction. So, I started to think about what we would look like after Roe vs. Wade.

    There are two ways to approach it. One is that there is a powerful extremist elite who is controlling this movement to overturn Roe vs. Wade and they wish to return us back to draconian days where many Americans are without civil rights - women foremost among them. I certainly fear this possibility and would show up to the fight were it to happen.

    The other approach is to trust Americans that Roe vs. Wade, despite its logical flaws, resulted in policies and practices that were positive for All Americans. I think most Americans don't want to return to days where abortions are illegal and performed in back alleys. We, as a society, have progressed in areas of civil rights and we will continue to do so, if we are prepared to offer alternatives to Roe vs. Wade that will keep abortion legal for the vast majority of women in almost any circumstance, though not every circumstance. It will be a challenge, but one AMericans can achieve, despite extremists intentions, just as movements for Peace are making progress as this Administration attempts to turn back the clock despite our efforts. Challenge? - yes. Defeated and going backward? - not yet.

    As far as BTD quote:

    In short, to give up on Roe is to throw away any notion the American People have left that Dems stand for anything. It is to rip apart the progressive wing of the Party and fracture Democrats in a way that was last seen when the civil rights laws were passed.

    The problem is he said the same thing about not funding the war and Dems standing for something. THere are only so many times you can go to the same well and not expect it to run dry. At the very least, people will eventually stop taking you seriously.  

    Democrats are much larger than Roe vs. Wade as are Americans. We can keep progressing and writing new and better laws. We don't need to succumb to the rhetoric of fear over every issue that faces us. Yes, the implications of Roe vs. Wade are huge. But, I agree with you G, that we best be prepared for how we deal in a democratic society without Roe vs. Wade or an extremely watered down version of it. THis is a more practical approach than telling Americans that Women will be chattel again if Roe vs. Wade is overturned. I don't think it is true and I don't think it will scare Americans into fighting or taking a stand to protect Roe vs. Wade despite its logiical flaws.


    g-man (none / 0) (#6)
    by sarcastic unnamed one on Thu Apr 19, 2007 at 04:07:51 PM EST
    I, for one, am not going to get into another debate with you on this issue today, but in reflection on what you wrote above and yesterday I would point out that you use the phrases "woman's right to choose" & "abortion rights" a lot, yet have never defined the phrases (that I'm aware of).

    That most Americans will support some level of access to abortions I have no doubt, that most Americans will support completely unlimited access...well, we'll see.


    Clarification on my position (none / 0) (#7)
    by glanton on Thu Apr 19, 2007 at 04:32:38 PM EST
    Without wanting to debate abortion with you today either (yesterday was a hum-dinger for me), I will still answer your question, since you indicated a wish to know.

    I'd vote for a referendum that permitted first trimester abortions, period; and after that didn't allow abortions unless there were demonstrably serious health issues.  Now, I know that's a tricky position.  I cannot and will not be so bold as to declare that suddenly you have a human being on the 91st day, or some such rhetoric.  I'd rather admit my position has serious holes, and defend it as best I can, than be an ideologically-driven fool.

    Like Peaches, I am well aware that being Pro Choice opens up huge moral and metaphysical problems.  Neither Peaches nor I are so special when it comes to that awareness, however.  

    At this point I feel the need to point something else out.  Yesterday you and Gabe and Peaches all raked me over the coals for perpetuating broad stereotypes of Pro Lifers.  And I'm sure you will agree with me that there is a widespread, equally misleading stereotype many Pro Lifers articulate about their opponents: Namely, that we do not recognize the huge moral component, do not care about Life, etc.  Or even worse, that women who get abortions do so flippantly.  These are terribly demeaning descriptions, and they are out and out lies.

    Anyway.  I hate for personal anecdote to drive my political positions, and avoid it whenever possible, but I would by lying if I didn't say I feel a heck of a lot less secure on my position in the wake of the birth of our beautiful son, who is now 8 months old.  We saw him moving around in there in the womb a few times.  

    I remain Pro Choice because the idea of forcing an unwilling woman to take a pregnancy to term also has horrifying moral implications.  The first trimester divide (not counting health issues) is honestly the best I can do at a compromise, then.  


    Oh for cripe's sake (none / 0) (#8)
    by sarcastic unnamed one on Thu Apr 19, 2007 at 04:40:10 PM EST
    I'd vote for a referendum that permitted first trimester abortions, period; and after that didn't allow abortions unless there were demonstrably serious health issues.
    That's my position exactly.

    sarcasmo (none / 0) (#10)
    by glanton on Thu Apr 19, 2007 at 04:50:47 PM EST

    This doesn't mean we've wasted our breath, not by a long sight.  At least as far as I'm concerned it's just as important to hash out terms of agreement than terms of disagreement.  And to examine as honestly as possible our own motives and those of our opponents.  


    Funny (none / 0) (#12)
    by sarcastic unnamed one on Thu Apr 19, 2007 at 05:10:53 PM EST
    that we hold the same position but I would never consider myself a "Pro-Choicer" - although I don't consider myself a "Pro-Lifer" either...

    Maybe a big part of the problem is labels?

    Anyway, yes, congrats on the baby! I've a 7 and a 5 year-old and remember each of their births as though it were yesterday. They humbled me with their perfection, and often still do.


    Labels (none / 0) (#13)
    by glanton on Thu Apr 19, 2007 at 05:21:37 PM EST
    It is difficult to have such debates without labels, and yet with them we wind up with so very many mangled perceptions.  Witness the terms Right and Left.  And my current favorite: "terrorist," how it shifts and dances depending upon who is using it.  The best solution with this, and with abortion, and with everything else is probably to just get rid of the labels whenever possible and instead look at whatever the specific topic is and let that topic stand in its own context.

    Anyway, enough of such matters.  I greatly appreciate the congrats.  And: a 7 and a 5 year old? I bet one thing nobody accuses you of these days is being bored or having too much time on your hands!!!!  


    Yeah man (none / 0) (#15)
    by sarcastic unnamed one on Thu Apr 19, 2007 at 05:47:37 PM EST
    it's all good. Welcome to the club!

    G (none / 0) (#9)
    by Peaches on Thu Apr 19, 2007 at 04:42:22 PM EST
    Congratulations on the birth of your son. I must admit that my perspective on life (nothignt o do with aboriton here-just life in general) completely changed the first day I held my son in my hands (all 11lbs 7 ozs of him).

    You have many moments of joy ahead of you. As I am sure you have realized by now, its probably the biggest challenge and hardest thing you've ever been faced with in your life, and you would never go back and change a thing. I never thought I could love so much.


    Thank you, and Yes to all that you write (none / 0) (#11)
    by glanton on Thu Apr 19, 2007 at 04:53:55 PM EST
    I never thought I could love so much.

    Also, I have discovered that I didn't know what Fear was until I held him for the first time. I used to say I was afraid to die.  I'm not fan of it now, either--but that sensation is nothing compared to the thought of something happening to him.


    My position, too (none / 0) (#16)
    by Peaches on Fri Apr 20, 2007 at 10:09:38 AM EST
    but, not exactly,

    I'd vote for a referendum that permitted first trimester abortions, period; and after that didn't allow abortions unless there were demonstrably serious health issues.

    I think I would worry about who was determining what constitutes the demonstratably serious health issues in the second and third trimester. I would like to give the benefit of the doubt to the woman and her doctor in most, if not all circumstances. However, and I think this is where the debate in America really begins, many Americans might want to have stronger enforcements and regulations on any procedure to terminate pregancy after the first term. Crafting legislation that ssatisfies everyone will be difficult. I am not surprised that you two agree on your positions, because I think most people think abortion in the first trimester, which constitutes the majority of abortions, should be legal. The sticky issues and what constitutes the debate is what happens after.

    I think it would be a great start to craft legislation that Americans overwhelmingly support for legalized abortions in the first trimester in any circumstance.

    Then we can flesh out the remaining issues with more comflicting and decisive opinions.


    Yes (none / 0) (#17)
    by glanton on Fri Apr 20, 2007 at 10:48:48 AM EST
    I remember several months ago watching Bill O'Reilly talk about "all these women" whose health issues are nothing more than anxiety, 11th hour dread, etc.  This is totally appalling misinformation, but he says these things with such smug assurance, and I have to believe his audience gulps it in uncritically.  So too with his ongoing rhetoric about "abortion as birth control," implying flippancy, or at the very least a callous equivalency between a woman's experience with the pill versus what it involves for her to get an abortion.

    My past track record with FNC aside (a track record I cheerfully stand by), in this instance I don't mean to beat up on Papa Bear O'Reilly specifically.  For such unsupportable, downright deceitful rhetoric is, really, everywhere.

    What you point out about the majority of abortions taking place in the first trimester, I would qualify and say the overwhelming majority of them in this country take place during that timeframe.  This too needs to be part of the conversation.  

    That's part of why, despite your invocation of the Boy Crying Wolf, I really like what BTD wrote, the fightin' spirit of it, even though I don't share what seems to be his belief that Roe might somehow withstand the current SCOTUS.  The insistence that Democratic leaders stay in this argument and indeed bring it to the fore of the discussion, because there are just so many misunderstandings.  As you have said several times most Americans, regardless of their personal beliefs, don't even know what Roeactually says.


    " It requires an extreme judge..." (none / 0) (#14)
    by libertarian soldier on Thu Apr 19, 2007 at 05:40:13 PM EST
    fully out of the mainstream to overturn Roe."
    As a non-lawyer, why?  
    Aren't there threads of mainstream legal thought that disagree with Roe for its reasoning--the penumbra, etc.--and consider it bad law, regardless of whether the effect was correct from a policy viewpoint?
    And reading other law blogs, haven't a fair number of legal minds rejected the whole ScAlito meme after the decisions this term?

    The penumbra was used for Griswold... (none / 0) (#18)
    by you like it on Fri Apr 20, 2007 at 03:07:11 PM EST
    not Roe.  If Griswold is correct, then Roe follows naturally from Griswold.  That is why those who believe Roe is bad law are extreme.  

    They either believe that birth control in general is not an implicit liberty protected by the Due Process clause (i.e. government can ban condoms, birth control pills, etc, arbitrarily or without good reason), or that the Due Process clause does not protect anything substantive at all (i.e. Bolling v. Sharpe is incorrect and DC can segregate schools by race).  These are positions that are not at all mainstream.  Not in judicial theory, and not in public opinion.