Hostage Alert: Roe v. Wade v. Women Voters

During every presidential election cycle, and any time a sitting president must fill a vacancy on the Supreme Court, American women report anxiety lest a step be taken toward a five-to-four majority on the Court that would overturn Roe v. Wade and, according to what many of these women say, illegalize abortion in the United States and abolish a woman's "right to choose." In the current presidential campaign we are hearing again that women are "afraid" of McCain and Palin, and in discussions that The Postliberal has had with women friends and family, concern about protecting Roe v. Wade almost invariably surfaces as the bottom-line issue that forbids consideration of the Republican nominees.

The concerns of these women are very deeply felt, and I should think they would merit sympathy not only from those Americans who support legal abortion, but even from fellow-citizens who don't. Anybody who believed that a civil freedom of importance rested in the hands of only five people--five people unelected and serving for life--would have to feel that the situation was intolerable. The women's frustration is made all the more urgent by the conviction of many--the almost certainly correct conviction--that the legality of abortion is supported by the majority of voters, male and female. So why should it be possible for five judges appointed for life to overrule the views of millions of Americans? Who gave five judges the right to decide whether women can or can't have legal abortions?

In my discussions with women about the legality of abortion I am struck by something the women are silent about, almost as struck as I am by their vigilant defense of Roe v. Wade. It is invariably left to me to point out that the legality of abortion in America does not actually depend upon Roe v. Wade, and that even if Roe v. Wade were overturned it would not necessarily mean that abortion would become illegal in the U.S. Usually this observation of mine is met with surprise and disbelief, although occasionally (since some women of my acquaintance are lawyers) with a certain reluctant acknowledgement. Why are American women, American women who are so concerned about the legality of abortion, also so predominantly unaware that abortion was legal in several states before the Roe v. Wade ruling, that other states were in process of considering making it legal, and that all states were constitutionally empowered to make abortion legal within their borders if their citizens decided it should be? With all the money we have invested in schools, with all our women's magazines and television talk-shows, with all the money that is contributed to the National Abortion Rights Action League and other organizations purportedly devoted to advancing the rights of women, one would think that someone in the business of speaking with good will to girls and women would take the trouble to inform them that the legality of abortion in the U.S. cannot be abridged by five votes on the Supreme Court as so many of them wrongly believe.

If somehow Roe v. Wade were overturned, the American men and women who favor legalized abortion would simply have to pursue the political task of making abortion legal in each of the fifty states. They are certainly up to it. So everybody can just relax about the composition of the Supreme Court. It will not, and cannot, "take over women's bodies," no matter who is elected president and no matter whom the president appoints. There's nothing for women who favor legal abortion to be afraid of in this election. In fact, should Roe v. Wade ever be overturned, it is the opponents of legal abortion who would have the most to fear. Why? Because by all indications their numbers are fewer than those of the advocates, and as a matter of both principle and general practice in our country, majorities rule.

So who was it that gave five judges the power to decide the abortion issue for tens of millions of voters, women and men? Nobody other than the "women's advocates" who financed the plaintiffs in Roe v. Wade, and the seven Supreme Court justices who ruled in their favor.

When "women's advocates" and their supporters chose to put the legality of abortion in the hands of the Court instead of leaving it in the voters', they also simultaneously gave the Court the power to take the legalization away, and deprived the voters of the power to keep it. That is the only reason why anybody would be worried about a Supreme Court that might declare abortion illegal just by overturning Roe.

It should be obvious to any supporter of legalized abortion that if today, more than thirty-five years after the Roe decision, American women still have to worry every time they think about the White House or vote for president, the "women's advocates" who won the freedom to have legal abortion for American women established that freedom on a very flimsy basis. That's not because they did the best anyone could in a backward country still alarmingly dominated by white Christian ignoramuses who believe in creationism and want to enslave women--because few if any people who fit that description actually exist, even in Alaska. Legalized abortion is established on a flimsy basis because the "advocates for women" didn't do their job well. They took a short cut. "Haste makes waste": that's something all our wise grandmothers and great-grandmothers knew, but the "advocates for women" today do not. In deciding that the justices of the Supreme Court were more to be trusted than the millions of American voters, women and men, working to establish their common laws through processes of democratic dialogue and legislation, the "advocates for women" chose convenience over thoroughness. American women have been paying the price for their impatience ever since, in their unending anxiety over the possibility that abortion might be illegalized by the Court.

Since Roe v. Wade thirty-five years have been wasted while citizens who could have voted for legalized abortion have been forced to sit on their hands. If millions of American voters, men and women, state by state, fought democratically to legalize abortion in our land, there is no power under our constitution that could frustrate the consensus of their voices. Millions of determined women voters do not have to worry about what five judges think of their bodies and beliefs. American voters, men and women, have always had the power under our constitution not only to legalize abortion, but to give that legalization all the force and stability of their determination and numbers. The only thing standing in their way now is...Roe v. Wade.

Why don't American women know this? Why are they needlessly afraid? Why aren't their "advocates" telling them how powerful they are under the principles and laws of our democracy?

At the national Democratic Party convention last month we heard a lot of praise for the work that an earlier generation of women did in establishing suffrage for women by amendment of the U.S. Constitution. We did not, however, hear anybody say that women should have the right to vote on the question of legalizing abortion. Did the Nineteenth Amendment somehow grant women the right to vote on every issue of community concern except the one that matters most to millions of them? Was it the vision of the suffrage movement that women voters would be kept in the dark about the real power of their votes in our democracy? Kept in constant fear of authoritarianism lurking both on their courts and within the homes of their own neighbors and fellow-citizens? And bullied into voting for one party, election after election, regardless of how they judged the particular candidates and issues in any particular election? Did women win the vote so that their strength could be held hostage and controlled by the self-proclaimed advocates for women?

The Postliberal thinks it is about time American women took back the right to vote in its entirety, so that they can establish legal abortion on the foundation of millions of votes instead of five or seven. To do this, however, they will have to join those who ask for Supreme Court appointments who are conscientious in their respect for the U.S. Constitution, the document they are sworn to uphold. It doesn't seem like much to ask for. Justices like that may well some day overturn Roe v. Wade, but if and when they do the effect of their decision, and in all likelihood its intent, will be to return the power of legislative choice to the citizens. In the present presidential election it is the Republican candidates who are most likely to support a Court that gets out of the voters' way, but there is no particular reason why the Constitution should not be championed by both parties. Women who support Democrats and legal abortion should realize that these ends are ultimately compatible with opposition to Roe v. Wade, and may even be better pursued without the intrusion of a patronizing Supreme Court. A movement for Choice without Roe would be neither progressive nor conservative, Democratic nor Republican. I'll call it Post-Liberal.

There is a pro-choice, anti-Roe position. Women should be speaking up for it, because in the long run it is the position that offers women the most empowerment, not only as biological childbearers, but as citizens of a democracy.