Since the landmark decision of Roe v. Wade in 1973, public opinion has decisively sided with the right of a woman to have an abortion. Yet in spite of this consistent public sentiment, these fundamental liberties continue to plague the current makeup of politics. With the decisions set forth by the Supreme Court, proponents of both sides of the abortion issue do not seek to battle face to face, but rather behind the scenes, keeping their political influence in the very realm that decided it all: the judiciary. So where Supreme Court Justices of the United States should be measured on a wide variety of metrics: productivity, judicial independence, jurisprudence, articulation, and quality of opinions issued to name a few, they are instead judged basically on one central tenet: their probable positions on the singular issue of Roe v. Wade. And where our federal courts should be viewed as platforms to which the spirit of the constitution is defended, it is instead viewed as the battlefield for reproductive rights alone, with the destruction of personal character to our judges merely because of what we think they may do once on the bench.
As such, an increasing number of proponents on both sides of the issue are expressing increasing comfort over the possibility of Supreme Court decision overturning Roe v. Wade. New York Times columnist David Brooks calls Roe the poison of the legislative process of nominating judges, to which a popular debate would be the only way to get out the country out of this judicial trap. Yet increasingly, many progressives concurring with the court decision are siding with the traditional libertarian movement against federal legislation. For progressives, one gains the opportunity to actually hold pro-life legislators accountable to the general electorate for their viewpoints when the risk of reproductive rights erosion is immediately at stake. They could immediately lay to rest the sentiment that nine people in a room get to supposedly make things up as they go along that is out of touch with public sentiment and without respect to a net public good through a victory in the court of public opinion. For libertarians, the decision would throw the issue back to the states, where the people can come to a compromise that best represents their view – most likely abortion laws with some restrictions that side with the majority views of their constituents. Yes there are the states that have immediate laws outlawing abortion should Roe be reversed, but these laws outside of the mainstream would most likely be altered to meet the true sentiments of their constituents (albeit the delay in revision leaves an interim of rights deprivation).
Yet even if we are to ignore the reasonable objections to the federalist sentiments expressed above, and for the sake of argument agree that the will of the masses at the state level should trump the plague paralyzing our judicial system, it is ironically another Supreme Court interpretation that leaves abortion at the hands of Congress, and not the states. Specifically, the United States Constitution gives to the federal government the right to “regulate commerce with foreign nations, and among several states, and with Indian tribes,” known as the Commerce Clause. Yet the very interpretation of the definition of “commerce” itself has been debated immensely amongst constitutional scholars. Where some would argue that this clause strictly refers to major interstate economic activity, others argue a transcendental definition towards all social actions that contribute to commerce between the states. Until the 20th century, the former argument was the predominant train of thought. As such, federal mandates of maximum working hours and a minimum wage were largely struck down in court. Yet in the middle of the 20th century, the paradigm shifted slightly towards the transcendental definition of commerce, becoming the standard of jurisprudence we are at today. In 1942, the Supreme Court issued the decision Wickard v. Filburn, broadening the powers associated to Congress, and reversing previous labor law restrictions. It is this decision that was heavily leaned upon in upholding the constitutionality of the Civil Rights Act of 1964. Since Wickard, the Supreme Court has only curtailed federal legislation invoking the Commerce Clause twice. So where in 2005 the Supreme Court confirmed federal government power to supersede state laws allowing for personal medical growth of cannabis in favor of federal restrictions because of the possibility of interstate movement, the process of having an abortion consisting of paying for a service that most definitely could involve crossing state lines would most probably fall under the power of the Commerce Clause. And so the overturn of Roe would not return the issue to the states, but rather remain in the national spotlight for a new national entrapment, this time of the legislative branch.
But given overwhelming public sentiment in favor of abortion, can Congress muster the necessary votes to ban abortion? Perhaps not, but they can exercise their ability to regulate abortion. In this manner, they can manipulate the public sentiment for some limitations on abortion laws, for example opposition in most cases to late-term abortion. So assuming an absolute ban isn’t feasible, procedural bans, regulations of interstate abortion procedures, restrictive consent laws, creation of medical review boards that are under no obligation of due process, easing of protection for abortion clinics, and other forms of oppression are quite realistic. In essence, the de jure abortion consent laws become a de facto abortion ban for the impoverished and minorities, with only the rich able to skirt complicated abortion rules or escape prosecution.
Libertarians hoping for a federalist society and progressives hoping for a knockout blow against abortion foes should thus reconsider the true impact of Roe and its enduring necessity. Libertarians would see more powerful federal regulation grounded not on the inherent rights of a woman, but rather through constitutional powers of interstate commerce. Progressives would be faced with a war on two fronts: at the state and federal level. By default, we are left with a conservative victory, to which for many, the federalist argument was never about state rights, but rather a distraction from a direct debate which they have been consistently losing.
Most importantly the importance of Roe lies in the declaration of fundamental rights that do not easily change with the political oscillations of our time. For over thirty years, women have been born where their reproductive rights have been held relatively constant, without the intense fear that can change with a coming election. While the courts are often viewed as vestiges of conservatism behind the times, transposed they are protectors of the voiceless against fears of disenfranchisement. As far as we’ve progressed in the discourse over abortion rights, at the very least the level of debate demonstrates that the legislative process in satisfying some sort of consensus was and still is highly defective, in which the decision of Roe was actually more in line with public sentiment than the abortion laws before its time. Roe remains understandably a contentious issue, but false appeals to issues such as federalism only serve to increase division and further manipulate the process, not reach a better understanding.