The superb New York Times's legal columnist Adam Liptak had an article this weekend that was disappointingly credulous about claims that judicial opinions are likely to produce a unique backlash. I won't fully rehash the arguments I've made on the subject. Suffice it to say, for now, that like many such argument the article curiously fails to focus on tangible policy benefits, as if avoiding opposition was an end in itself. Does anybody think that abortion would today be legal in all 50 states, and only marginally regulated in most of those, absent Roe? Do you think same-sex couples in Massachusetts would prefer the New York strategy of waiting for Godot Senate Democrats to recognize their right?
Since you here it invoked a lot (often by people who have never read the actual speech), however, I'd like to address Ruth Bader Ginsburg's claim that, as Liptak puts it, "Roe went too far too fast and may have been counterproductive." Ginsburg's argument, however, is deeply problematic. First of all, Ginsburg doesn't (of course) believe that a woman's reproductive freedom isn't a fundamental constitutional right. Rather, she argued that the Court should have waited and rested on gender equality grounds instead of due process grounds. This form of the backlash argument is exceptionally implausible even on its face. First of all, the public evaluates Supreme Court decisions on policy grounds -- for all intents and purposes, nobody without a professional responsibility to do so reads judicial opinions. And second, most judges who oppose Roe are scarcely more sympathetic to expansive notions of gender equality.
The second problem with Liptak/Ginsburg argument is that is implicitly underestimates just how restrictive the status quo was in 1973. "It would have been enough," Liptak summarizes, "to strike down the extremely restrictive Texas law at issue in Roe and leave further questions for later cases." But, while the Texas statute was extreme in terms of policy, it wasn't extreme in comparison to other state laws at the time -- more than 30 states had similarly draconian laws that would have been struck down even by a more minimalist ruling. Particularly given that Ginsburg (correctly) also wouldn't have upheld the "reform" laws that requires to get approval from panels of doctors applying completely arbitrary standards, it's hard to see how this would have created any less backlash.
--Scott Lemieux
