Patterico correctly points out that, should a Bush-appointed Supreme Court majority overturn Roe (and Casey), it would not automatically make abortion illegal. What it would do is toss the issue back to the states, or, arguably*, to Congress.
I think Roe was one of the least principled decisions ever to come from the US Supreme Court, and that includes such charmers as Dred Scott, Plessey and the still-applicable Slaughter-House Cases (which invalidated part of the 14th Amendment). However, I think overturning Roe at this point would be a bad idea.
Part of this rests on stare decisis, the idea that it may be a bad decision, but it's too late to change it. But most of my reasons rest on the politics of the issue, which are nearly all bad for Republicans. First, overturning Roe gains the Republicans not a single vote. No one who votes "pro-life" needs this to be convinced to vote Republican. All Republicans can do by overturning Roe is retain this base. To be fair, those who vote "pro-choice" haven't voted Republican in decades, so this camp will also not be affected. The problem is that the middle may bolt.
While overturning Roe does not criminalize abortion generally, it will criminalize abortions in some states immediately, and these will be the cases that the mainstream media plays up. Back-alleys, coat-hangers and other forgotten horrors will be the meme.
But that's not even the bad part. In Roe's absence Republicans will be forced to fight a losing battle in many of the state legislatures. On the one hand will be their core constituents who expect the effort, on the other will be the 60% (or more) of the state's voters who want some abortions legal. Lose-lose. Republicans in those states will get slaughtered at the next election, as people in the middle vote an issue they've ignored for 20 years.
Overturning Roe is one of the worst things Republicans can do politically. Yet ignoring it is also not possible, as their core pro-life constituents will feel, rightly, betrayed. What to do? I offered one solution a while back -- a compromise Constitutional Amendment. I still think that this is best, as it both removes the blot of Roe from the Constitution, and it avoids the political chaos of overturning Roe directly.
Here's another solution which is maybe simpler and the Supreme's can do by themselves but stops short of overturning Roe: Remove the two words "or health" from the Roe mandate.
_____________
* abortion could be considered a matter of interstate commerce. Ask me again after Raich is decided.
You'll never get support for a constitutional amendment on abortion.
I agree that overturning Roe may not be a good thing for Republicans *politically* -- it's always better to have the issue out there to motivate people. But that's cynical politics. We shouldn't play that game.
Posted by: Patterico at November 28, 2004 04:18 PMPatterico --
You might be confusing me for someone who is a social conservative. I dislike ROE solely because emanations and pemumbra suck. Abortion, per se, doesn't bother me (in the first months anyway), just like it doesn't bother the 60-70% who are apolitical on the subject.
Overturning Roe, however, WILL piss off many of those 60-70% (and it won't matter what "it means"). What a fool thing for the Republicans to piss away their majority over.
No, I am not confusing you with anyone. I know you to be someone who believes in democracy -- in putting questions like this in the hands of the people.
I am conflicted about abortion, but I not conflicted about the fact that Roe stole our chance to decide this issue ourselves. Unfortunately, now that this phony right has been falsely enshrined in the Constitution, no amendment to fix the situation has a prayer. It's too divisive an issue for the broad consensus necessary for a constitutional amendment.
The only choice is to reverse the precedent. And we should do that, even if it does harm Republican politics, because it's the right thing to do.
I am convinced that, once people actually see that a reversal of Roe doesn't mean the end of legalized abortion, they would be calmer about it. It's the scare tactics employed by the left (including the media) that keep the issue so frightening for so many.
Posted by: Patterico at November 28, 2004 10:03 PMNo moral issue bothers me at all. Infanticide, cannibalism, hanging-for-shoplifting, forced euthansia -- bring it on! All that really matters is that whatever the is issue is (and it really doesn't matter WHAT it is), it be decided by directly or indirectly elected representatives of smaller political subdivisions -- rather than by elected representatives of the larger political entity of which the smaller subdivisions are a part, or by the elected or unelected judiciaries of the larger or smaller subdivisions.
Posted by: The Raving Atheist at December 1, 2004 11:26 AM