David Michael Miller
Judge Brett Kavanaugh’s imminent ascension to the Supreme Court could spell the end of Roe v. Wade, the 1973 decision that legalized first-trimester abortions nationwide. Should Roe fall, states will once again decide the legality of abortion on their own. As Judith Davidoff, now Isthmus editor, discovered back in 1989, Wisconsin has a pre-Roe statute on the books that will ban abortion the moment the Court overturns the decision.
Polling shows that a solid majority of Wisconsinites, and Americans generally, want to keep abortion legal. Nationwide, support for choice tracks very closely with support for Roe’s preservation.
Wait, you might be thinking. Isn’t supporting choice the same thing as supporting Roe, and vice-versa? The similar levels of popular support indicate that many think so. But they are not the same. People are pro-choice out of a legitimate concern for women’s rights. Roe, on the other hand, is an almost bizarrely bad piece of constitutional jurisprudence.
The framers of the Constitution went to great pains to enumerate lists of both federal powers (Article I, Sec. 8) and protected rights (the Bill of Rights). Roe is the culmination of a Supreme Court habit, developed in the middle of the last century, of treating certain parts of the Constitution as catchalls for unenumerated powers and rights. Griswold v. Connecticut (1965), for example, discovered a right to use contraception within an enforceable “zone of privacy” in the “penumbras“ emanating from the enumerated Bill of Rights. In concurring opinions, a couple of the Griswold justices located the right instead in the Due Process Clause of the 14th Amendment: “No state shall … deprive any person of life, liberty, or property, without due process of law.” (See it? Me neither.)
The opinion portion of Roe consists, in a nutshell, of a detailed world history of abortion back to ancient times (provided for reasons unclear), a few approving citations of Griswold and similar cases, and then a declaration that first-trimester abortion is within the supposed zone of privacy. As Harvard law professor Laurence Tribe puts it, “one of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”
Roe’s deficiencies are an open secret among America’s liberal intelligentsia. Even legal scholars who enthusiastically embrace the concept of a flexible Constitution seem to regard it, among the family of groundbreaking mid-century Court decisions, as the crazy uncle in the attic. University of Pennsylvania law professor Kermit Roosevelt writes, “you will be hard-pressed to find a constitutional law professor … who will embrace the opinion itself rather than the result. As constitutional argument, Roe is barely coherent. The court pulled its fundamental right to choose more or less from the constitutional ether.”
Liberal commentator Michael Kinsley agrees: “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.”
None of this is to say that women do not have a right to choose; only that it might not be among the rights protected by the Constitution. As pro-choice Brookings Institution senior fellow Benjamin Wittes points out, “lots of fundamental rights are protected by legal authorities other than the Constitution. For instance, the right not to be fired by a private employer because of one’s race or religion is statutory, not constitutional.”
Indeed, most of our rights are cognizable only at the statutory level. Adults, for example, have the statutory right to move about freely in their cars, so long as they comply with certain requirements. Our elected representatives maintain statutes that support that right because it is popularly recognized as such. The Constitution has nothing to do with it.
To be sure, some set of rights should be protected from majority rule. Instead of being limited to the Constitution’s enumerated rights, Roe asserts that the set of protected rights is open-ended, and that its expansion is the prerogative of the Court. Had the framers thought through the protocols of judicial review, they would certainly have rejected the unlimited power this implies.
We should reject it, too. For every liberal-friendly overreach like Roe, there is a Bush v. Gore (2000), wherein the Court garishly exploited the 14th Amendment’s right of equal protection to appoint a conservative president.
Instead of defending Roe, Wisconsin pro-choicers should fight like hell to elect state leaders this fall who recognize the right to choose. The Legislature is a long shot this time around, given the gerrymanders. But should Roe be reversed, Tony Evers has pledged to pardon Wisconsin abortion doctors, so that they may continue their work.
Roe may be beyond help. But there’s hope yet for the choice movement in Wisconsin.
Michael Cummins is a Madison-based business analyst.
