If you have spent any time studying the law or listening to the pontifications of mainstream legal pundits, you have likely heard some version of an oft-repeated refrain about Roe v. Wade: “Yes, women should have the right to receive an abortion, but Roe itself was a poorly reasoned decision.” Whether it’s the legal blogger Benjamin Wittes calling on liberals to let Roe die or the influential Yale Law professor John Hart Ely writing that Roe is a “very bad decision,” many members of the ostensibly pro-choice coalition have made a pastime out of dumping on the legal decision that, until last month, was the primary safeguard of reproductive freedom.
But this isn’t just the fixation of those who take issue with the technical or legal reasoning of Roe. Even those who back the decision on the merits can be surprisingly tentative in their support. Instead, the defense of Roe often boils down not to the fact that it was correctly decided but that it has been a lasting presence in our lives—its mere persistence a self-reinforcing merit that needs no further justification.
President Joe Biden’s speech following the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe, is a fairly good exemplar of this way of thinking. He led his remarks by asserting that the court “took away a constitutional right from the American people that it had already recognized.” Former President Barack Obama’s statement echoed his old running mate, noting that the court “overturned 50 years of precedent.” That is how Roe is chiefly defined in our media and political environment: an important precedent, without doubt, but not something that everyone is particularly thrilled about defending beyond the incidental fact of its long-standing existence.
But with Roe gone, Democrats can no longer use its mere longevity as a political crutch. They must now come to grips and develop a new strategy, one that reframes abortion rights not as a tradition wrongfully interfered with by a rogue court but as a fundamental aspect of the constitutional guarantee of liberty and bodily integrity. It’s time for Democrats to embrace the central substance of Roe, not just its holding.
The critique of Roe often boils down to the claim that the Constitution does not make specific mention of abortion anywhere and that the court, in delivering this landmark ruling, didn’t bother to explain why the procedure is protected as a constitutionally kosher right. But Harry Blackmun’s majority opinion is more straightforward than it is given credit for: The right to an abortion, Blackmun writes, is grounded in a “right to privacy … founded in the Fourteenth Amendment’s concept of personal liberty.” As Blackmun writes, restricting a woman’s right to an abortion would necessarily cause “psychological harm,” affect a woman’s “mental and physical health,” and “force upon the woman a distressful life and future.” In other words, liberty is a broad concept, one that incorporates the ability to make such a gargantuan personal choice about one’s body and future free from state interference.
If there’s any legitimate criticism of Blackmun’s opinion, it’s that it didn’t go far enough; a woman’s freedom to participate freely in society should be stressed more than privacy or the potential harms of an unwanted pregnancy, and Roe’s trimester framework still gave states too much latitude to undermine the rights asserted by Blackmun. But what Roe does, at its heart, is define abortion as a fundamental aspect of freedom rather than merely a necessary medical procedure. Roe forces us to think about liberty more broadly, to understand that self-determination in our society requires highlighting the unique needs of vulnerable populations rather than adopting a strict and unwavering view of individual rights. By adopting this robust formulation of liberty and centering personal freedom and self-determination, Democrats can place abortion rights directly alongside other rights currently under attack, from gay marriage to the ability to use contraception to voting rights and more.
Roe is also an entirely sensible ruling in a legal sense, especially considering what often passes for constitutional jurisprudence. The Supreme Court’s most recent term is not going to go down in history as a particularly rigorous, or even consistently logical, period of legal reasoning. But long before this Calvinball court started its most recent term, the case books overflowed with unintelligible gobbledygook, from the “anti-commandeering doctrine” invented by the right to shield states from federal intervention to the absurd idea that corporate spending in elections is protectable speech, to the game of historical grab bag conservatives employ to justify a constitutional right to own an assault rifle. That Roe is often cited as some ne plus ultra of the Supreme Court’s more indefensible rulings is simply intellectually dishonest, and unfairly gives cover to the right’s own brazen judicial activism.
Still, it cannot be said that the left’s reluctance to embrace Roe’s core reasoning stems entirely from good-faith beliefs about constitutional law. In fact, Democrats’ unwillingness to truly assert and defend what Blackmun identified as the essential truth of Roe was accompanied by several occasions in which abortion rights were undermined, often with Democrats’ assent.
The Hyde Amendment, the law prohibiting federal funds from being used to finance abortion, is still on the books with little historical opposition from Democrats (Obama once refused to commit to a federal option that would cover abortions, noting the “tradition, historically, of not financing” abortions with federal money). President Bill Clinton proliferated the idea, repeated by generations of Democrats, that abortions should be “safe, legal, and rare.” More recently, when President Trump promised to appoint anti-Roe justices to the Supreme Court, Democrats didn’t bother to make abortion a central piece of their opposition to Amy Coney Barrett, instead focusing on her vague views about the Affordable Care Act.
Even when it became clear that the court was set to overturn Roe, the Democratic leadership supported a pro-life representative in his primary against a pro-choice progressive, and President Biden arranged a deal with Mitch McConnell that would have placed an anti-abortion judge on the federal bench. In many ways, the Democratic Party’s tepid support of Roe can be seen merely as a convenience: By enshrining the right to an abortion in the Constitution, the court had removed the issue from the political sphere, relieving Democrats of any responsibility to defend abortion rights aggressively. (The Biden administration appears to avoid even using the word abortion altogether.)
Of course, the primary blame for the grim reality facing American women today lies with the Supreme Court’s far-right majority and the Republicans who appointed them. But future generations will wonder why the left spent the decades following the Roe ruling whittling down the idea of abortion to a mere medical procedure protected by a flimsy legal precedent instead of asserting the fact that reproductive freedoms are part and parcel with other fundamental rights worth defending with the full weight of the Democratic Party’s political power. Ultimately, Roe is gone, and so too are the days of hiding behind it as an untouchable precedent. It’s long past time for Democrats to adopt Blackmun’s central innovation: Abortion isn’t just an important medical procedure but a necessary component of every woman’s constitutional guarantee of freedom.
