Roe v. Wade

The Crumbling Castle

Many people believe, wrongly, that Roe protects only first-trimester abortions, a misimpression that most polls (including the NBC/Journal poll) go out of their way to foster. Many people also believe, wrongly, that overturning Roe would automatically lead to a national ban on all abortions. What polls on Roe really measure is public opposition to an immediate national ban.

The relevance of these polls to actual political behavior is tenuous. The public's support for Roe does not even translate into opposition to the confirmation of Supreme Court nominees who might vote against it — as public support for John Roberts and Samuel Alito makes clear.###

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The Court would be perfectly justified in concluding that its attempts to micromanage abortion policy have failed, in regarding this failure as an indictment of its pretensions to have any special expertise or authority to do so, and in scrapping Roe. In Casey, the Court argued that many people have relied on the availability of abortion in the event of contraceptive failure, and that this fact was a reason to continue to protect a right to abortion. But legislatures are perfectly capable of deciding what weight to give to that fact.

The justices may prefer to move incrementally. They may decide, when they again rule on partial-birth abortion later this year, to rule narrowly: to cede just enough legislative authority back to legislatures to let them prohibit partial-birth abortion. Little by little, they might restore democracy in this area.