Demagogue

I'm just saying.

But seriously: I'm talking about this from a legal perspective, not a political one. It's becoming increasingly common for left-of-center pundits to say liberals would be better off if the Court had stayed out of it, for various reasons (the case wouldn't have become such a good fundraising and organizing point for the right, politicians espousing pro-life views wouldn't be so prominent because a majority of voters are pro-choice, etc.).

That's not what I'm talking about.

I'm also not saying abortion should be illegal, nor that any particular restriction on it is a good idea (e.g., parental notification laws, the Partial Birth Abortion Act). As a matter of policy, and even of morality, I think that the government should not control what women do with their bodies and should not force everyone to live according to the dictates of a minority's religious views on an issue over which there is deep moral disagreement in the country.

What I'm saying is that states do not violate the 14th Amendment when they criminalize abortion, or at least not in a way that courts should remedy.

Certainly, as many commentators of various persuasions on the issue have noted, the reasoning of Roe itself is not the strongest example of judicial analysis. Scholars have come up with a number of alternative constitutional theories for why states cannot ban abortion. Some of these theories are both thoughtful and thought-provoking and can lead to a useful discussion of how the Constitution should be interpreted in general. Perhaps I will one day read an analysis that convinces me that the result in Roe was correct, even if its reasoning wasn't. Maybe that analysis has already been written. But I haven't seen it.

If you want to think about this in political terms, the ACS blog has a good post on contemporary conservative judicial activism (which the author seems to define, as I would, in an objective way to refer to judges' overturning the acts of legislatures and executive-branch officials). As it did for the first third of the twentieth century, conservative judicial activism threatens to dismantle governmental programs and laws that liberals think are critically important, including much of the New Deal. This is already starting to lead liberals to reconsider their support for an activist court on social issues.

But, again, that's not what I'm talking about. I don't think Roe was wrong because it can legitimize judicial activism on the other side of the political divide; I think it was wrong in principle. To return to the ACS blog, my thinking is somewhat along the lines of Professor Cass Sunstein's ruminations posted yesterday.

I'm pro-choice as a political matter. And I appreciate the consequences that overturning Roe could have on many people's lives, particularly those of young women without means. But much as I oppose the criminalization of abortion and the many ingenious ways conservative legislatures have found to make obtaining an abortion practically difficult, financially draining, and emotionally abusive, I don't think judges should be intruding into the political struggle over the issue--even judges who share my views about the wisdom and morality of abortion bans.