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"A Ruling The G.O.P. Loves To Hate"--A Commentary by Prof. Jack Balkin


(This essay was originally published in the January 25, 2003, edition of the New York Times.)

A Ruling The G.O.P. Loves To Hate
By Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment

Thirty years after Roe v. Wade, many wonder how long the decision can survive when the Republican Party controls all of the branches of government. Republicans may well chip away at Roe v. Wade. But if they overturn it, they do so at their peril.

The contemporary Republican Party is a coalition. It contains religious and social conservatives who are strongly opposed to abortion, and economic conservatives, libertarians and suburbanites who may be quite moderate on abortion rights or even strongly pro-choice. Today, the abortion struggle largely revolves around issues like late-term abortions, parental consent requirements and restrictions on public financing. Moderate voters can accept many if not most of these regulations because the basic right to abortion is still protected.

But if Roe v. Wade were overturned, the political agenda would shift. Early-term abortion would no longer be constitutionally insulated from federal or state efforts to outlaw it. In response, some states would restrict or abolish abortion rights. Social and religious conservatives would also press for abolition of abortion at the national level. For Republican candidates, it would no longer be just a question of defending limited restrictions on abortion. They would have to explain whether they were willing to send women and their doctors off to jail.

Democrats could easily pick up moderates and independents turned off by the demands of the Republican Party's religious base. In short, the process would split the Republican coalition wide open. The party would soon find itself losing ground in many key states, seriously hampering its chances at winning the presidency for a generation.

Although many Republicans loathe Roe v. Wade, without it, the contemporary Republican Party would probably not exist as we know it today or have been so successful. Reaction to Roe v. Wade helped spur the conservative social movements of the 1970's and 1980's, which opposed feminism, secularism and sexual permissiveness and sought to overturn liberal decisions. Ronald Reagan welcomed religious conservatives into the Republican Party, and helped form a winning coalition that has shaped politics for a generation.

But Roe v. Wade has not simply been good for Republicans. It has also been good for the country as a whole and for the democratic process. People often accuse the Supreme Court of ignoring majority will by striking down laws passed by democratically elected legislatures. They forget that by narrowing what legislatures can fight over in especially divisive areas like religion and abortion, courts actually help working majorities form.

By taking certain issues off the table in religious-based controversies, the courts enable political parties to organize around bread-and-butter issues like the economy and national defense. As a result, political parties are able to attract broad constituencies instead of narrow sectarian allegiances.

In a world with Roe v. Wade intact, the Republicans are not just the party of the religious right, but also the party of lower taxes and strong national defense.

To some, Roe v. Wade symbolizes the Supreme Court's failure to bring consensus to a divided country. But in areas like religion or abortion, that is precisely the wrong expectation. Roe is not supposed to eliminate controversy. Rather, it functions as a lightning rod, drawing political heat away from the democratic process and onto the Supreme Court itself.

Many Republicans hope that President Bush will soon nominate pro-life justices who will sweep away the right to abortion, and allow the deep religious conviction and moral revulsion that some Americans feel about abortion to be fully expressed in politics. They should be careful what they wish for. As Scripture tells us, one who brings trouble to his own house will surely inherit the wind.


Jack M. Balkin, a professor of constitutional law and the First Amendment at Yale Law School, is author of "The Laws of Change."