The importance of Roe v. Wade
to American politics and culture is something almost intuitive to modern, politically-aware Americans, but which perhaps might not be as familiar to foreigners
or future generations
. Hotly debated and highly polarizing, Roe
is unquestionably the most controversial Supreme Court
ruling of the modern day, arguably the most since Dred Scott v. Sandford
, and possibly the most since the inception of the court. Opposition to and qualms with Roe
comes along many lines and from many (sometimes opposing) sources, and some of the most important are noted below.
First, and most obvious, are complaints from those who oppose abortion itself. In general, these begin with the assertion that the fetus is morally equivalent to a born human, from which would naturally follow that abortion is morally equivalent to murder, concluding that the two should be treated as legally equivalent. At its most emotional, opposition to the Roe decision along these lines asserts that as it allows "murder", it is wrong. At its more abstract, it holds that the natural rights of life and self-determination central to American political thought can, and in fact to avoid contradiction must, be applied to the unborn, and that a failure to protect them from abortion amounts to a failure to maintain the "equal protection of the law" promised in the Fourteenth Amendment. It is these complaints, especially the more emotional varieties, that tend to get the most attention, at least in the popular press. If not the pivot around which opposition to Roe turns, they are at least the fulcrum underneath the issue's political center of gravity.
Next is the more technical argument that Roe is simply bad law, a position held by many abortion opponents, but also by those who believe that abortion should not be addressed at the national level and even some legal scholars who count themselves as ardent supporters of legal abortion. Roe v. Wade, while not actually creating the concept of a "right to privacy" implicit in the Constitution (that was mostly established in 1965 with Griswold v. Connecticut, and its intellectual roots are often traced back to a Harvard Law Review article published in 1890 by Samuel Warren and future Supreme Court Justice Louis Brandeis) has done more than anything to cement its place in the legal and popular culture.
Strict constructionists, of course, object to this on the grounds that it is at best an overly broad reading by the Court, which should properly stick to a literal reading of the document, leaving all issues of "flexibility" and unaddressed or unforeseen issues to be dealt with through the provided process of amendment. (Here limited-government advocates note that while with the right to privacy, restrictions on the government are being read into the text, given an environment where such interpretations are accepted, it could as easily go the other way, with the commerce and elastic clauses as precedent.) At the worst, these opponents argue, the decision represents a ham-handed attempt to justify, after the fact, a policy decision, properly the sphere of the legislative branch.
With the justification of rights at issue set aside, Roe opponents taking this legal tack point out that it would certainly be possible to address abortion at the state level, and in fact the Tenth Amendment marks states as the appropriate forum for these policy issues. Prior to the Roe decision, abortion was de jure legal in a handful of states and de facto legal in many areas, and several promising attempts were underway to challenge state bans, either by repeal through legislation or overturning in lower courts, and these "federalists" cite this as evidence that abortion can be handled in a measured, less polarizing, and small-d democratic manner at the state level.
Finally among the major strains of dissent with regards to Roe are those who support its ultimate effect, but question the wisdom of its selection as a means to that end or the strategic position which victory in Roe has left their movement. With the Roe decision, all the above-mentioned state-by-state attempts to legalize abortion naturally ceased. With victory came a loss of momentum, and as any halfway-decent revolutionary or demagogue can tell you, political movements eat, drink, and breathe momentum. Donations, volunteering, and enthusiasm fell sharply, and with good reason - the battle won (for the time), it was difficult to articulate exactly what was being striven for. Many organizations shuttered their doors, while the survivors consolidated and focused on adapting to a post-legalization world.
This did not, of course, mean that everyone was happy with the status quo. The state-by-state efforts at legalization had meant that opposition to abortion had never risen as a coherent, organized national force, but it would. There are ways to pacify political opposition and get opponents used to living in your world, but an imposition of your will by judicial fiat is not a particularly good way. When the legalized abortion movement lost a rallying cry, the anti-abortion movement gained one, and its constant repetition in fundraising letters, speeches, and denunciations delivered as messages from God swelled the ranks and the coffers of the usually Christian-aligned abortion foes like Operation Rescue, Jerry Falwell's Moral Majority, and the Christian Coalition, often broad-based, "religious right" groups that contributed significantly to the rise of the Republican Party in the 1980s and 1990s, following the eventual collapse of the Democrats' long-lived New Deal coalition.
While these opponents often attempted to strike at Roe directly, they by no means felt compelled to use the legalization movement's tactics exclusively, and were active at the local and state level, contributing to the passage of laws that fell within the acceptable boundaries of regulation that the justices had left to the states, limiting the conditions under which abortions could be performed or making them more difficult to obtain, especially for women of limited means. In a new generation of court cases culminating in Planned Parenthood v. Casey, these laws were often upheld as constitutional. While these chinks in the invincible armor of Roe helped somewhat to renew enthusiasm and support for abortion rights groups like NARAL, it did not pacify abortion opponents, and still left abortion supporters on the defensive, attempting to rebuild institutional momentum from scratch while unable to articulate much of a proactive agenda.
While the Supreme Court does tend to hold to the precedent-upholding principle of stare decisis, this is by no means the secular equivalent of papal infallibility, and courts have reversed positions on "settled" issues before, perhaps most famously in Brown v. Board of Education, which ran directly counter to Plessy v. Ferguson. Of course, victory in Roe forestalled any movement to have a right to privacy or abortion explicitly amended into the Constitution. The development of a right-wing "superstructure", with groups like The Federalist Society serving to encourage and assist conservatives (many of whom might be itching to get at Roe) and libertarians (who at the least might like to kick the issue back to the states) climbing the ladder of judicial power could feasibly bear fruit in the overturning or re-envisioning of Roe in the next few decades. Given such a situation, the abortion rights movement might feasibly be able to rebound and eventually take the day - polls have recorded widespread, if not especially enthusiastic, support for legal abortion - but, as these opponents point out, it may well have been easier to just do it right the first time around.