Radley Balko, pictured at right, is now a senior editor of Reason magazine and a former policy analyst for the Cato Institute specializing in vice and civil liberties issues. Balko has an essay in the August/September issue of ReasonOnline that makes for very informative, very challenging reading for Americans on either side of the abortion controversy. Some excerpts:In 1985 a prominent liberal legal figure argued that Roe v. Wade, the Supreme Court decision that established a constitutional right to an abortion, was a “heavy-handed judicial intervention” that “was difficult to justify and appears to have provoked, not resolved, conflict.” The writer was Ruth Bader Ginsburg, now an associate justice on the U.S. Supreme Court—and also now a strong supporter of Roe.
Ginsburg isn’t the only backer of abortion rights to have taken issue with the 1973 decision. In 1995, for example, the University of Chicago’s Cass Sunstein, a superstar among liberal law professors, wrote in the Harvard Law Review that the high court “should have allowed the democratic processes of the states to adapt and to generate sensible solutions that might not occur to a set of judges.” Roe, he argued, centralized an issue centered around privacy, reproduction, and medical ethics, all matters that traditionally have been the province of the states. Moving those moral debates to Washington forced a one-size-fits-all policy on the entire country, raising the stakes, and therefore the contentiousness, of an already divisive issue.
A new book by a staunch critic of abortion also suggests a decentralized approach. In The Politics of Abortion, the conservative sociologist Anne Hendershott offers a scathing, unabashedly polemical history of the pro-choice movement. While Hendershott leaves no ambiguity about her own position on the issue, she closes the book by calling not for more federal antiabortion laws but for returning the issue to the states. It is time to end the “superficial slogans that rally the troops but build impenetrable barriers,” she writes. “Taking the discussions out of the courts and back to the realm of local policy, where we might once again debate the politics of abortion as neighbors and friends, would be a good start.”...
...Without Roe, the pro-choice movement would have had to keep taking its case to the state legislatures. States with more permissive attitudes about sex and reproductive rights likely would have passed more permissive abortion laws. Other states would have embraced tighter restrictions. And some states would have kept the existing prohibitions in place.Had Roe gone the other way, it’s likely that “partial-birth” abortions already would have been prohibited in most states. (The vast majority of the public opposes the procedure at issue in Carhart, which involves partially delivering a fetus, then making an incision at the base of its skull and vacuuming out the contents.) States with a strong interest in preserving parental rights likely would have required parental permission for a minor to obtain an abortion. Some states might allow abortion but prevent the use of public funds to pay for the procedure. Others might allow abortion on demand and provide funds to ensure poor women’s access to the procedure.
A federalist approach wouldn’t minimize the stakes for either side. But it would recognize how important the issues are to both sides by allowing as many people as possible to live under an abortion policy that best reflects their own values, and it would transform national politics by moving a particularly poisonous argument to a more appropriate venue. Justice Ginsburg may have embraced Roe, but other supporters of abortion rights have moved in the opposite direction. Pro-choicers who have recently criticized Roe v. Wade include The Washington Post’s Benjamin Wittes and Richard Cohen, Harvard’s Alan Dershowitz, and Slate’s William Saletan. It’s healthy that at least a few voices on both sides of the debate are finally coming to realize the benefits of leaving this issue to the states.
Anne Hendershott, by the way, [shown at right] is a Professor of Sociology at the University of San Diego and has served as a Visiting Fellow in the James Madison Program in American Ideals and Institutions at Princeton University. In addition to The Politics of Abortion, she has written Moving for Work: The Sociology of Relocating in the 1990s, The Reluctant Caregivers: Learning to Care for a Loved One with Alzheimer’s and The Politics of Deviance (reviewed by Kathryn Jean Lopez over here.)
