If Judge Samuel Alito is confirmed, are we entering a post-Roe era?
Maybe not quite yet. Even if Alito proves, as his critics fear, to be a reliable vote against Roe v. Wade, we are still likely one vote short of overturning that Supreme Court decision creating a constitutional right to abortion. But Alito's confirmation in spite of what The New York Times finds "obvious" -- e.g. "that Judge Alito would quickly vote to overturn Roe v. Wade" -- in itself proves that Roe is anything but "settled" law.
Americans' commitment to the rule of law, and our faith in our own institutions, means that over time Americans typically come to accept even controversial Supreme Court decisions. But 30 years after Roe, abortion remains a uniquely unsettled and unsettling issue to most Americans.
If you'd like to see for yourself how unsettled Americans are about abortion, check out this compendium of recent abortion polls: www.pollingreport.com/abortion.htm.
A Gallup poll from Jan. 9-12, 2006, for example, found that 59 percent of Americans say they think abortion laws should be either "less strict" or "stay the same" (compared to 38 percent who chose "more strict"). On the other hand, a CBS News poll taken Jan. 5-8 found that only 27 percent of Americans would permit abortion in all cases; 15 percent say permit abortion "subject to greater restriction than it is now." Thirty-three percent say permit abortion "only in cases such as rape, incest and to save the woman's life," and 17 percent said abortion should be permitted only to save a woman's life. That adds up to 65 percent of Americans favoring legally restricting abortions.
So which is it: Do 65 percent of Americans or 38 percent of Americans favor greater restrictions?
Depends on what day you ask.
Abortion is the issue that won't go away because it is not a right that most Americans feel very good about having or using. The rhetoric of liberalism turns against itself on the abortion issue; phrases such as the "right to be left alone," "bodily integrity" and "equal rights" always carry within them, acknowledged or unacknowledged, a shadow critique of abortion in a liberal democracy. (The same New York Times editorial that denounced Alito for his abortion stand also unself-consciously accused him of "a history of tilting the scales of justice against the little guy," not apparently noticing that there is hardly a littler guy around than human life in the womb.)
Among the left, there is now talk of "Roe fatigue," as one blogger put it at the Talking Points Memo Cafe this November. Abortion rights stalwarts like law professor and author Susan Estrich and columnist Katha Pollitt feel obliged to ask, as Pollitt put it in The Nation last August, "Should Roe Go?" "With the resignation of Sandra Day O'Connor, more people are asking that question. Democratic Party insiders quietly wonder if abandoning abortion rights would win back white Catholics and evangelicals. A chorus of pundits ... argue that Roe's unforeseen consequences exact too high a price: on democracy, on public discourse, even, paradoxically, on abortion rights."
By most analyses, the end of Roe would benefit Democrats, not Republicans: "Overnight," Estrich (who, like Pollitt, supports Roe anyway) asserted, "every election, for every state office, would become a referendum" on "whether regular old middle-class adult women could get first-trimester abortions. When you think about it that way, you have to ask: What could be better for Democrats?"
Maybe so. But what could be better for this country than an honest debate about what we think about abortion and how the law should treat it? Let the political chips fall where they may.
Whether Republicans or Democrats will benefit, with Alito's confirmation one thing will be clear: The days of Roe v. Wade are numbered.