Dan Hitchens

The real question at the heart of Roe v. Wade

There’s nothing dystopian about allowing democratic representatives to choose

The real question at the heart of Roe v. Wade
A pro-life protestor holds a petition outside the Supreme Court (Getty)
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There are two possible responses to the sound and fury currently emanating from Washington and from the American media after a leak indicated that the Supreme Court will overturn Roe v. Wade in the next couple of months. For House Speaker Nancy Pelosi, Justice Samuel Alito’s 96-page draft judgment points to ‘the greatest restriction of rights in the past 50 years’. The Guardian’s Moira Donegan believes America is witnessing its ‘final days of reproductive freedom’. The Mayor of London Sadiq Khan, always to be relied on for a ludicrous soundbite, declared that ‘London stands with women across the United States today’. Bernie Sanders is calling for Congress to overrule the Supreme Court. Commentators are rolling out their predictions of mass unrest, even civil war.

The first response is to point out that Justice Alito’s leaked opinion is scarcely a manifesto for a Margaret Atwood dystopia, or a social-conservative rallying cry, or an essay in bioethics. Instead, it expertly and rather gruffly lays out the weaknesses of Roe v. Wade: a judgment that, as Alito observes, has been seen as embarrassingly ill-reasoned even by legal scholars who support abortion. Roe has no proper constitutional logic behind it, no historical or philosophical depth: it was an attempt to magic a legal principle out of thin air. And overturning it does not impose a new regime. It just allows each state to make its own laws, through its own duly elected officials. Some places will want to drastically restrict abortion, others will not. A lot of people who have spent the last six years warning about various dire threats to democracy now seem oddly keen for judges to curtail it.

But perhaps that response is a little bloodless, if that’s the word, a little too cold and rational. Abortion is nothing if not an emotional matter, which is why for many of us the most moving literary treatment of the subject is Gwendolyn Brooks’s poem The Mother, swinging back and forth between guilt (‘If I poisoned the beginnings of your breaths…’) and self-justification (‘the crime was other than mine’) and an agonised affection (‘Believe me, I loved you all’). It’s why a lot of people have deeply conflicted feelings about the law: sure, abortion is horrible, but we live in an imperfect world, and banning it could bring all kinds of social consequences, and perhaps a baby the size of a small lime is a different kind of thing from a full-grown person. And so we live uneasily with a law made of awkward compromises and half-baked principles, and try not to think about it too much.

But some questions are too important to be left in confusion and ambiguity. People felt extremely conflicted about slavery too, but in the end the issue had to be dragged into the light and answered. And the question of abortion is a simple one. Can you have a sane civilization – can you have a civilization at all – that enshrines in law a universal right to kill?