TUESDAY, MAY 3, 2022
Plus, was Roe correctly decided? Presumably, American politics will turn on a dime if Roe is overturned.
Such a ruling would create a rare situation, in which our blue tribe's position on a major dispute would conceivably boast a substantial majority in the realm of public opinion.
That said, abortion would quickly become illegal in a significant number of states. There's no way to know how subsequent political debate would turn out, whether in the various states or on the federal level.
This will quickly become the latest war of the tribes. Presumably, the fight would concern a search for the wisest public policy. Presumably, we wouldn't be asking if the right to terminate a pregnancy is guaranteed in the Constitution.
We'll be discussing wise public policy, not constitutional penumbras. That said, it might not be a bad idea for pro-choice liberals to remember that there have always been questions about whether Roe was correctly decided way back in 1973.
Was Roe correctly decided? Was it sound, well-reasoned constitutional law? Michael Kinsley was the brightest center-left public figure of the 1980s, and he always said the answer was no. Here's something he wrote in a Washington Post opinion column in 2004:
KINSLEY (11/14/04): Liberal judicial activism peaked with Roe v. Wade, the 1973 abortion decision, and has been in retreat for longer than it lasted.
Although I am pro-choice, I was taught in law school, and still believe, that Roe v. Wade is a muddle of bad reasoning and an authentic example of judicial overreaching. I also believe it was a political disaster for liberals. Roe is what first politicized religious conservatives while cutting off a political process that was legalizing abortion state by state anyway. Three decades later, that awakened giant controls the government.
Kinsley was pro-choice as a matter of policy, but he believed that Roe had been poorly reasoned. He also believed that it was Roe, more than anything else, which ignited the religious conservative movement which came to play such a dominant role in our national politics.
Other figures of the center left, up to and including Ruth Bader Ginsburg, have voiced concern with the way Roe was reasoned. If the Court decides to overturn Roe, it will return abortion rights to the political stage—and it will give our struggling blue tribe a political issue on which we might conceivably find a way to win.
Or not! Over here within our self-impressed tribe, the spirit isn't all that willing and the flesh is often quite weak. When it comes to finding a way to win, it may be too late for that.
We'll be seeking the wisest public policy. Will our tribe be able to find a way to win on that?