My friend Chad at CCK responds to my post "Roe was a Disaster for the Court" at some length and with serious arguments. For the most part he refrains from attacks on my character. This is something of a surprise, so let me respond in kind.
William Baude, writing in the New York Times last year, outlines the chaos that would be created if today's Supreme Court would decide to overturn the Roe decision.
What Chad calls "chaos," the Founders called "federalism." Having fifty state governments with their own sets of laws sometimes creates conflicts. Resolving these conflicts is one of the things we have a national court for. If Roe were overturned, as I believe it should be, some states might prohibit abortion. This is by no means certain, but it is surely possible. It is almost certain that other states would not do so. William Baude worries about this:
States could make it illegal to cross state lines in order to abort a fetus -- a tactic Ireland tried in the early 1990's, until a court decision and subsequent constitutional amendment recognized a right to travel. While the Supreme Court has recognized a constitutional right to travel across state lines, it has also recognized exceptions.
This is what judges and Court scholars call "a parade of horribles." It is pure speculation about what might happen if the Court did other than what it has been doing. In fact there is no reason to believe that this problem would arise, because the conditions for it are already present. Webster v. Reproductive Health Services allowed states to put substantial restrictions on abortion (one day waiting period, no use of public facilities, etc.) which are likely not to be in place in neighboring states. If the problem Baude imagines has not yet occurred, why suppose it will occur in the future?
And if it did occur, the Court could then resolve it in accord with Constitutional text, precedent, and tradition. That, applying existing rules to current conflicts, is what Courts are all about. The Court has a lot of standards in the founding document and traditional readings both by previous courts and Congress to resolve such conflicts between the states. The Justices have no grounds, except those they have willfully invented since 1973, to decide whether abortion is a constitutional right or not.
And that is why every Supreme Court nomination since Ronald Reagan put Robert Bork has occasioned a political crisis. The only thing that most members of the Senate Judiciary committee are really interested in is the nominees position on upholding Roe. No other question has ever created this sort of problem. For Heaven's sake, we now have pundits asking whether there are too many Catholics on the Supreme Court! Is this modern America, or 19th century Ireland? This situation is clearly bad for the Court, which is supposed to represent a group of umpires, not a place to win or lose the game.
If the Court did overturn Roe, all the political pressure would shift away from the Court and back to the state and national legislatures where it belongs. Questions of whether states could prohibit women from crossing state borders to seek abortions might come before the Court. Given the commitment of the anti-Roe judges (Scalia, Thomas, and presumably Roberts and Alito) to a Federalist solution to the abortion question, I think it very unlikely that the Court would allow one state some control over the legality of abortion in another. But such questions would be peripheral to the main question: whether abortion is legal at all. If that question belongs to the states and Congress, it would no longer matter much what the next nominee thinks about abortion. That would allow the Court to back to its proper job: interpreting the fundamental laws of the United States.
Chad says this:
One additional point that I believe needs to be raised is in reference to Blanchard's statement that Roe "gave a total victory to one side." I would argue that just the opposite is true under Roe. The decision gave each woman to choose what is best for them in their unique situation. Those who are opposed to abortion are free to choose to bring a pregnancy to term just as those who in their unique situation find that terminating pregnancy is the best option for them.
Chad ignores the fact that this matter involves the status of the unborn child. Is the unborn child a person or not, under the Constitution? Consider a perfectly healthy fetus, days away from natural birth. Is this fetus a person or not? Once outside the womb (a mere accident of time in the last days), he or she is clearly a legal person. To kill a healthy human infant a few days after birth is murder, is it not, Chad? So what about a day before birth? The Court says that the same human being has no rights or claim to personhood at that point. That is giving a total victory to the prochoice side.
Roe created a right to abortion which has no ground in the text, logic, or history of constitutional law. It rests solely on the will of five or more out of nine. This turns every Supreme Court appointment into a political crisis, in which competence and judicial philosophy are eclipsed by the single question of what that judge would do about abortion. No other court decision has created this kind of political dysfunction.