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At bottom, Roe raises two questions, one substantive, the other jurisdictional, and they should be taken in that order. Note first, however, that the substantive question arising in Roe is very different from the one at issue in Griswold v. Connecticut, the 1965 decision on which, many believe, Roe rests. Griswold challenged a state statute prohibiting the sale and use of contraceptives. Thus, the statute could not be said credibly to be defending the rights of anyone; on the contrary, it ran afoul of rights. By contrast, the statute at issue in Roe was designed precisely to protect rights, the putative rights of the unborn. And so the basic substantive question was clear: When does the right to life begin?
On that question, the Constitution is indeed silent--mostly. Here's why. We would all agree, I hope, that if a doctor took the life of a baby one day after birth, it would be infanticide--murder. Thus, states that protected older babies but not younger ones would doubtless be subject to equal protection challenges, at least, and would probably lose. But if taking the life of a baby one day after birth is murder, what is the difference if the act is performed one day before birth? It strains credulity to suppose there is any real difference. Well, what of two days before birth--and so on down the line? It's impossible to draw a principled line at which to say, precisely, that this is where the right to life begins. The court's trimester taxonomy in Roe was its own invention, entitled to no more constitutional support than anyone else's opinion on the matter.
And so we come to the jurisdictional question: Who decides? And on that the Constitution is not silent. Whether we believe that the right to life begins at conception or at some point over the next 270 days, we all believe, I hope, that it begins at some point along that line. We all agree, that is, that there is some point at which abortion amounts to murder. We just can't agree about where that point is. And so we're faced with a classic line-drawing problem, not unknown in other areas of the law, but here involving the criminal law and, therefore, the general police power--the power that belongs, under the Constitution, to states.
We come, then, to the heart of the matter. Just as states draw lines differently between murder and manslaughter, so too they should be expected to do so here. In fact, they were doing so when Roe was decided 32 years ago. If ever there were a case in which the court should have let the political process unfold naturally, this was it. Were the court to have done so, we would not have had over three decades of endless political and legal turmoil over this one decision, turmoil that has skewed and even poisoned every confirmation battle since. Indeed, no less than Ruth Bader Ginsburg made a similar point in her 1993 Madison Lecture at the New York University School of Law, two months before she was nominated for the high court. A more "measured" opinion, she said, might have spared the nation this pain.
It would not be the end of the world, therefore, if the court were one day to overturn Roe, for the issue would simply return to the states. A conservative state like Utah might prohibit most abortions, but next door in Nevada we might see a liberal regime. On an issue about which reasonable people can have reasonable differences, that result should not surprise.
Judge Alito, however, does not and should not have to say even this much in his upcoming confirmation hearings. Those who insist on his saying more are largely the same people who insisted on the court's deciding this issue in the first place. They politicized the court then. They should not be allowed to do it again.
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