How Roberts might save Roe

Being pro-choice in America has become synonymous with being pro-Roe. Activists have spent the last 30 years convincing themselves — and the American public — that if Roe goes, the fight for reproductive freedom is lost. We cling mightily to Roe as the ultimate, definitive, inevitable focal point of pro-choice politics.

Consequently, pro-choice critiques of Roe are virtually unheard of. It is tacitly presumed that anyone who thinks abortion should be permitted must have full confidence in the moral and legal reasoning behind the court's decision. Protesters brandish "Save Roe!" placards, as though the mere invocation of precedent is argument enough. The case as such — the actual ruling itself — has taken on greater significance than the lives and principles at stake.

This reflexive, unquestioning allegiance to Roe has stunted the growth of the pro-choice movement. Abortion rights advocates remain constantly on the defensive: Instead of forwarding fresh arguments for the moral legitimacy of abortion, we clutch protectively at a sacralized court ruling. The sterility of this approach is becoming apparent. The refusal to critically engage the values underpinning Roe has left the pro-choice lobby inarticulate and desperate-sounding.

That's why the imminent recomposition of the Supreme Court could actually be a good thing for the future of abortion rights. These rights are not, as we've been led to believe, in any immediate danger: Justices Ginsberg, Breyer, Stevens, Souter and Kennedy still make five reliable votes to uphold Roe. But faced with the increasingly real possibility that Roe may not endure forever, defenders of reproductive freedom must start thinking about how to present their case in a post-Roe political culture. If necessity is the mother of invention, pro-choice America might finally find its voice.

The very mention of a post-Roe culture is chilling for most abortion rights activists. But it's time for NARAL and other pro-choice lobbyists to realize that there is a future for abortion rights in the United States, with or without the benefit of Roe.

If Roe were reversed tomorrow, abortion would still be legal throughout most of the country. Polls consistently show solid majorities opposed to any new restrictions on a woman's access to an abortion. Only one-fifth of Americans believe that abortion is wrong in all instances. I don't doubt that a small handful of state legislatures would be interested in limiting — if not criminalizing — early-term abortions. But surely, the available data does not warrant the desperately defensive note sounded by NARAL since the announcement of Judge Roberts' nomination. A post-Roe, pro-choice America is very much imaginable, if we're only willing to work for it.

Indeed — and I know that this is a very great heresy — abortion rights may well become more secure in a post-Roe America. For decades, the national dialogue on abortion has been constrained by the terms of Justice Blackmun's opinion for the Roe majority. But it is not clear that his opinion represents the soundest justification of reproductive choice. The court's construal of abortion as a purely "private" decision assumes that fetal life is utterly valueless in the eyes of the state. This is a hard proposition for most Americans to buy. It seems more plausible to claim that the fetus is valuable in some sense, but that its moral status remains distinct from that of a born human being. Once we get outside the orthodoxy of Roe's "right to privacy" doctrine, we may find that the pro-choice argument gains nuance and force.

The case for abortion rights has also been unduly hampered by the perceived weakness of Roe's strained constitutional logic. We might be better off seeking new legislation to protect reproductive freedom, rather than insisting that such protections are already guaranteed by the federal constitution. It is always tempting to elevate our policy preferences to the level of "fundamental constitutional liberties." But in the end, it might be more credible to argue that permitting abortion is the right thing to do — whether or not the constitution mandates it. After all, over-reliance on judicial interpretation is a double-edged sword; liberties that live by the court shall die by the court. The appointment of John Roberts should drive this lesson home.

Indeed, the advent of the Roberts court could usher in a more mature — and more effective — phase of abortion-rights advocacy. If this week's confirmation hearings spark a critical reappraisal of Roe, pro-choice politics will be stronger for it. Jeremy Golubcow-Teglasi is a religion major from Potomac, Md. He can be reached at golubcow@princeton.edu.