To be for or against abortion is just one of those things. Like being for or against slavery, a matter of one’s view of human rights.
To be for or against Roe vs Wade. One can be either in terms of the resultant law, or either in terms of how constitutional law was used. One can even be – as rather a lot of people are – against is on the basis of how the law was used and yet in favour of the law that results. This is not actually a subtle position. It’s a common and well understood one in fact. Yet one that seems to escape Michelle Goldberg here:
In a floor speech in July, Senator Josh Hawley, Republican of Missouri, issued an ultimatum on future Supreme Court fights.
“I will vote only for those Supreme Court nominees who have explicitly acknowledged that Roe v. Wade was wrongly decided,” Hawley said. He would require on-the-record evidence that the next Republican nominee “understands Roe to be the travesty that it is.” Absent that, he said, “I will not support the nomination.”
This, says Ms. Goldberg, is good, For it means that Republicans and religious types have to tell America where they stand upon abortion. Which ain’t what is being said at all. Rather, the point is being made about how Roe vs Wade was decided. Senator Hawley lays it out here:
For these reasons, Roe is no secondary issue. It is not something to be pushed to the side of the nomination process. Roe is central. Roe is a window into the constitutional worldview of a would-be justice. It is a measure of their sense of what a justice should be. If you believe that Roe was rightly decided, then there just is no two ways about it: you are a judicial imperialist. If you believe Roe was rightly decided, you believe that unelected judges should have the power to enact their own social views, to promote their own social agenda, regardless of what the Constitution says or what we the people have expressed preference for, voted for, and enacted into law.
And, I would add, it seems to be the case that when justices enact their views, they inevitably enact the views of a certain social class. Oh yes, the highly educated managerial front row of American society, the class of the faculty lounge in the C Suite: that’s what you get when judges govern America. But that’s not what the Constitution calls for. That’s not what the Constitution specifies. The Constitution says that sovereignty rests with We the People—that it should be the people who are in charge.
What the American people want and have written in their fundamental law and in their statutes should carry the day. The people have a right to run their own government. They have a right to expect their views to prevail, to have their Constitution be obeyed and to expect that the justices are appointed to their Supreme Court will abide by the Constitution’s terms as we the people wrote them.
And that is why I say today that I will vote only for those Supreme Court nominees who have explicitly acknowledged that Roe v. Wade was wrongly decided.
Which is a rather different view from that which Ms. Goldberg is attacking:
This makes the conversation about the future of legal abortion abstract and hard to follow. Traditionally, the right has liked it that way. For years, Hawley said in his Senate speech, religious conservatives have been told: “Don’t mess up the Supreme Court nomination process by raising Roe. It’s imprudent. It’s in poor taste. It will divide our coalition.” Instead, he said, conservatives were urged to talk about “process, about methods, maybe throw in some talk about umpires.”
There’s a reason for this: Roe is popular. While many Americans support abortion restrictions, a Pew poll last year found that seven in 10 oppose seeing Roe overturned. As David Wasserman wrote on Monday, more than a fifth of Trump’s 2016 voters in battleground states leaned pro-choice.
Even if Roe were reversed – something I think will happen because it really was a terrible decision – then abortion could still be legal in the US. After all, it was legal in many parts of the US before Roe was decided. And it’s legal in near all of Europe and other rich countries without a constitutional court ruling in favour of it. The voters vote that abortion should be legal and there we are, it’s legal. And as Ms. Goldberg is saying, she thinks most voters would so vote.
The argument against Roe is that it was a really bad decision. That is different from the argument about abortion being legal or not. If Ms. Goldberg can’t quite grasp that then why is she being allowed to work at the New York Times.