The Danger of Winning

By Ann Neumann

Anybody else uncomfortable with what seems like popular revisionism of Roe v Wade as “too far, too fast”- as Adam Liptak quotes Ruth Bader Ginsburg telling a Columbia University audience in his Sunday front pager “Shadow of Roe v. Wade Looms Over Ruling on Gay Marriage?”

Liptak’s premise is that maybe the Supreme Court would cause another backlash if it ruled DOMA and Prop 8 unconstitutional, a backlash like Roe v Wade caused.  Society’s not ready for same-sex marriage and a SCOTUS decision that makes it legal nationally could cause another culture clash, Liptak seems to conclude.  Or rather doesn’t really conclude because he’s so busy pretending he’s got no hand the story….

He closes the piece with this:

“Isn’t the danger,” Judge Walker asked Theodore B. Olson, a lawyer for the two couples challenging the ban, “not that you are going to lose this case, either here or at the court of appeals or at the Supreme Court, but that you might win it?”

But Liptak’s two sides are lopsided.  The only counter he has to this frame and its application to same-sex marriage is that the two issues are not the same… and that legislation on abortion had already come to a halt before the 1973 decision. No mention that maybe the controversial nature of abortion for the majority of the nation was manufactured. I’m not saying that manufactured isn’t real (h/t to Jeremy Stolow) but that maybe we’re not stuck with the same paradigm each time rights cases come ‘a courting.

I’ve heard (and repeated!) the same thing in the past–that rights can’t be established until society is ready for them, that the states are the best place to have the rights conversation because the public has a chance to think and decide.  LBJ could never have passed civil rights legislation if the public hadn’t supported it. You know, all that “laboratory of the states” stuff.

But Liptak’s piece makes me wonder:  why are we telling ourselves that our culture wasn’t ready for Roe v Wade? And that any rights conversation has to happen at the state level–and for a long time–before it can be accepted nationally?

Or to get at this from another angle, WHO started the “backlash” against Roe v Wade?  Society at large (you know what I mean) or interest groups?  Seems to me a strong case could be made that particular actors politicized abortion for their own purposes, whether ideological, political or whatever.

Aren’t we giving too much away then when we allow the nation’s lefty-ist paper to frame the current “divide” over abortion as something our society wasn’t/isn’t ready to handle?  Rights are rights, one could argue, and we already know that democracy, particularly our antiquated form of it, doesn’t protect minority rights.

Aren’t we enlightened enough to be having THIS conversation–How can we best protect minority rights, for the good of all society, within the legal and political framework we currently have?–instead of acting like our general culture, despite it’s public lipservice to egalitarianism, can’t handle preservation of minority rights without a long and painful process of getting used to them?  Is this how other societies do it?  Can we really not find a way to do it differently?

Sure, I get it that our understanding of rights evolves (h/t to Arthur Caplan).  But so should our understanding of how to protect them, no?  (I’m talking to you, toothless Left!)

Here’s a case in point:  A clear majority of American’s supports aid in dying (my lens on physical autonomy and rights), yet that support in our “democratic” society hasn’t translated into legality.  My answer so far is that evangelical, “pro-life” grass-roots organizations, in conjunction with the Catholic Church and other (wealthy and resourceful) groups have cowed the medical profession and politicians from touching legalization, despite the dozens of state bills that are introduced each year.  Aid in dying supporters are clearly outspent.  But aid in dying supporters often also think themselves “in the shadow of Roe v Wade.”

I hate seeing a revisionist history of abortion rights used–by journalists, supporters, and lawyers–to curtail Supreme Court rulings on other rights like same sex marriage.  Is it just a stubborn frame?  One dangerously accepted by even our our most liberal sitting SCOTUS judges?  What am I missing?


image: Associated Press via The New York Times, “Thousands of people marched in St. Paul in 1973 against the Roe v Wade decision.”

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