How Roe Led Supporters Astray

Roe v Wade was a watershed case when it was decided by the U.S. Supreme Court in 1973. It gave women greater rights over their own body. It allowed women to decide when they could start having children (if at all), empowering them to become more equal and prominent members of the work force and overall society. It allowed many others to stave off poverty. It eliminated the dangers of back room abortions. And much more.

But, I believe, in the long run it led its supporters astray as they looked to the courts as the ultimate guardians of the right. And that was the absolute wrong takeaway.

First, the courts do not have an enforcement mechanism other than the power of their word, legitimacy of their precedents and coherence of their logic. There is no police force. For every decision a court makes at any level, there are hundreds of lawyers immediately searching for loopholes in their precedents and logic. They will find them.

Second, the courts are just one branch of government. They need an executive branch to enforce the decision (and continue to appoint justices who support the right) and a legislative branch to fund and enact laws supporting it (and not undermining it). Those two branches, as separate institutions, could never be aligned. And as elected branches of government more responsive to the whim of the American people, those two branches could never be aligned.

Third, supporters needed to continue the ground game necessary to persuade hesitant opponents and those on the fence to embed the right to be able to choose to have an abortion in the popular conscience. Sure, there have been periodic rallies and protests that fired up current supporters and future generations…but they evidently did not garner enough converts.

So here we are…48 years since the decision was first issued…and the right is as tenuous as ever. The pro-choice movement of the last almost half-century failed to do what it needed to do: persuade enough additional Americans that the “right” — as established by the Supreme Court — was a right that didn’t contradict their values and was consistent with constitutional and moral tenets of America.

Roe v Wade should have been the waypoint in a continuing effort to entrench the right. It was a beachhead from which to build greater support. It should not have been the rallying endpoint it became: a cudgel and shield with which to defend a still nascent right.

Moreover, resting a critical element of the right on the concept of when life begins was doomed to failure. First, because there is nothing more precious than life…and, more specifically, the future life of a baby. It will inflame powerful emotions. Second, it is impossible to define life. Yes, you can look to science and medicine, but it is an unavoidably magical/mystical/religious thing to many American which no finely-tuned legal opinion will counter.

In the end, a right that existed across the country solely by virtue of having 5 of 9 judicial appointees support it…after almost fifty years…was never much of a right.

But any decision that the current Supreme Court makes does not end the right. First, it is still a right in states that recognize it.

Second, and more broadly, a new approach can be…and ought to be…adopted. Substantively, there must be a more compelling argument that can have popular appeal as well as legal validity. Process-wise, the tone and approach must be less confrontational and more empathetic to the other side.

The right should rest on the concept of equality. Women and men have sex. And they should have as much as they want. Equally. They are equally contributing members of society in every way possible and their ability to continue to do such…equally…should be preserved.

Responsible people take protections when they have sex. But those protections sometimes fail or are neglected. Sometimes people mislead. And too often there is rape. There are certainly numerous…indeed, innumerable…other situations in which a women may wish to have an abortion as well.

In all of those cases, the ensuing physiological and emotional and financial burden is borne by the woman. Almost 100%. Not her otherwise equal male partner in the sexual encounter.

The woman gets the morning sickness. The woman gets the back pains. The woman loses sleep. The woman has the life or potential life in her taking her food and water and oxygen. The woman goes on bed rest. The woman bears the complications of always-risky procedures and surgeries. She bears the risk of getting sliced open for a c-section. She bears the life-threatening risk of childbirth itself. It’s her career that takes the hiatus. It’s her emotions that get scrambled by the very personal and hormonal experience of carrying a fetus and giving birth to and taking care of a baby. Unless she already has a healthy partnership, it may be her finances that are negatively implicated forever by the costs of carrying a child, giving birth to a child, caring for a child, paying for the college of a child.

These are the reasons…just some of the reasons…why women should have the right to choose to have an abortion. No male legislator has a right to impose those burdens on a woman if her boyfriend forgets to wear a condom or if her birth control pill fails to work during her one-night stand. Even if they decide to have unprotected sex. No female legislator has the right to impose that burden on another woman. No one should have the right to impose that burden on a woman in the case of rape.

This inequality of consequences strikes me as a much more compelling, broadly-appealing argument, from which to embed the right via popular, democratic processes, while more soundly resting on the concept of equality. Whether or not privacy is proper justification for the right is academic because current events suggest it has been ineffective and unpersuasive.

But in a society, we have to live with others…a vast array of “others” who don’t think like us and have different values. There can be no absolutes. That is unavoidable. So advocates need to go out, door-to-door (literally or figuratively) and listen to and persuade everyday folks, using the above argument and/or any other that is effective at making people change their opinion. Advocates need to get involved in the day-to-day of politics and elected office. Compromise must be sought, even if the other side balks.

The tone of public dialogue must also change. Babies…even the idea of babies…are a very very VERY emotionally charged topic. Maybe supporters should really step into the shoes of the other, pro-life side while they formulate their position? Think about how traumatizing it is…even for someone who is pro-choice…when there is a miscarriage. Whether or not it was technically “alive”, they’re emotionally reacting to the mere “idea” of a future baby.

And while that is a personal decision and sentiment, it is not unreasonable to think that there will be plenty of people who feel protective of that “idea” whether or not it’s theirs. Supporters must engage opponents with more civility…with more respect and understanding. Not attacking their viewpoint, which dooms any engagement to failure.

By doing such, supporters will also create opportunities to impress upon opponents their own perspective. This is not about ceding a position, but about broadening a position to seek out a more lasting truce on the matter so we can move on to other issues…new issues…that confront modern society.

Or we can continue to demonize each other…but look where that’s gotten the debate.

In short, we need to find compromise and encourage civil tone. Because, as much as pro-choice advocates may contend otherwise, tearing the country apart for the sake of this one singular right (or almost any other right) is not worth it. Without the country, there are no rights at all.

And one last thought…perhaps the most broad-reaching impact of Roe being overturned would be less sexual encounters as women decide the risk is not worth it, compounding a problem already effecting an increasing number of men, as discussed by Prof. Scott Galloway in his article A Few(er) Good Men.

We need more pleasure and connection in this world, not less.

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Wine Merchant. Former corporate lawyer. Former Naval officer. Current husband & father of 3. Brooklyn since 00. Our nation’s ideals are worth fighting for.

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