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“Roe” Redistributed Power—and Its Supporters Should Champion That

Political grief can resemble personal grief, and what apparently is the close-to-final draft of the opinion overturning Roe v. Wade has produced that sense of a cataclysmic plunge. What has died, however, is not only or even primarily a principle of law. We did not win Roe and keep it alive for 50 years because one side wrote better briefs than the other. Nor is that why we lost it. Roe was the product of one powerful political movement, and its impending death will be the product of another. What died in Dobbs v. Jackson Women’s Health Organization is the last vestige of constitutional romanticism.

The abortion debates were never fundamentally about whether the Constitution allows for recognition of “privacy” as part of liberty but whether at least some choices of some women to delay or avoid motherhood or not increase the number of their children, and thereby better control their lives and futures, would be respected. That debate is not beginning again because it never ended.

Roe has been falsely accused of many things. It was not the worst or most poorly reasoned Supreme Court opinion ever written, not even close. It was not out of touch with the American people; the decision has had majority support in opinion polls from its beginning to what is apparently its end. It was not unworkable; millions of women have obtained safe and legal abortions since 1973. More recently, advances such as medication abortion are making the procedure safer, simpler, and even more manageable.

Bromides like “we have no Trump judges and no Obama judges” aside, at its core the law is profoundly political, not in a narrow partisan sense but because its lifeblood is the allocation of the power of some over others. In most cases, the resolution of who wins and who loses produces little in the way of social consequences. Even in many important cases, the ordinary protocols of judging, such as reasoning based on analogy, suffice and occasionally create space for creativity and wisdom. Judges are not infallible, but most whom I have known are persons of integrity who strive for both fairness and fidelity to law.

More than a hundred years ago, in a personal injury case in New York’s highest court, Judge Benjamin Cardozo reinterpreted the concept of causation to allow for consumers to sue automobile manufacturers when defects in the design or production of cars led to accidents. This was the beginning of product liability law, which shifted the cost of such harms from drivers and retailers to the corporations where the negligence had occurred. It was a turning point in American law, and it had nothing to do with the Constitution or the Supreme Court.

In some instances, exemplified dramatically by Roe, legal disputes entail stark asymmetries in power and deficits in democratic institutions. In decisions of constitutional dimension, the stakes can be huge, the impact tectonic, and the question of what the Constitution means, through interpretation of such principles as liberty and equal protection of law, can seem to have stakes as high as debates over scripture because it is so imbued with who we think we are as a nation.

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