Notre Dame and Obama’s Roe Problem

President Obama’s calls for honest dialogue on the abortion issue can only get off the ground if both sides agree that abortion is a contestable issue. But if it is a contestable issue, it should be settled by democratic processes—not judicial fiat.

President Obama’s speech on abortion at Notre Dame raises interesting questions. Given the strong passions the abortion issue stirs, Obama called on all of us to reflect on how we might “work through” our differences. We should do so, Obama intoned, by “open[ing] up our hearts and our minds to those who may not think precisely like we do.” Obama, in other words, attempted to cultivate an open-minded and deliberative debate on an issue in which reasonable citizens of good will disagree with one another.

Yet elsewhere Obama has indicated that he is actually strongly opposed to democratic deliberation on abortion. During the third presidential debate, Obama declared before a national audience:

I think that the Constitution has a right to privacy in it that shouldn’t be subject to state referendum, any more than our First Amendment rights are subject to state referendum, any more than many of the other rights that we have should be subject to popular vote.

In this account, the right to abortion is similar to the right of assembly—it is an uncontestable right that should never be subject to democratic debate and disagreement. This raises the question of how abortion can be an uncontestable right and an issue we should collectively “work through” with open hearts and minds.

If access to abortion is really like the right to assemble, then we must believe that there are no admissible arguments for the pro-life position. Yet if the case against a fundamental right to abortion is so unreasonable, then why engage it? After all, we do not usually think citizens should “open [their] heart and [their] minds” to those who oppose basic First Amendment rights, such as the right to assemble. We do not think Americans should feel obligated to “work through” their differences with racists or terrorists.

Pro-choice advocates sometimes justify their common hostility to democratic deliberation by denying the contestability of abortion. The Canadian based Pro-Choice Action Network, for example, explained its policy against debating pro-life thinkers this way:

The right to abortion is not debatable, because access to legal, safe abortion is a fundamental human right, one that is protected by law and supported by the majority of citizens. The provision of basic human rights is not open to debate.

It is easy enough to dismiss such opponents of democratic deliberation as unreasonable radicals who ignore pro-life intellectuals. Yet such abortion rights advocates are simply following through on the logic of Obama’s argument in the final presidential debate. Seen in this light, activists inside the Pro-Choice Action Network are hardly on the fringes of the pro-choice movement, which has been generally opposed to debating abortion in public forums. They are just more philosophically coherent than Obama has been.

On the other hand, if Obama believes that both pro-choice and pro-life advocates are making contestable rights claims, then the right to abortion and the right to life are not at all similar to other constitutionally guaranteed freedoms. Contestable moral issues involve reasonable disagreement over the good society. Therefore, they “should be subject to popular vote” or at least openly debated in democratically elected legislatures. In these cases, an open and honest debate is both needed and contributes to the health of our democracy. If abortion is contestable, moreover, then either a court imposed right to choice or right to life would be illegitimate. In both cases, a handful of judges would undermine our collective ability to work through our reasonable differences and disenfranchise thoughtful citizens.

Some supporters of abortion oppose Roe for similar reasons. In the pages of the Atlantic Monthly, for instance, Benjamin Wittes argued that Roe has undermined democratic deliberation. As Wittes has put it:

[T]he liberal commitment to Roe has been deeply unhealthy—for American democracy, for liberalism, and even for the cause of abortion rights itself. All would benefit if abortion-rights proponents were forced to make their arguments in the policy arena (rather than during Supreme Court nomination hearings).

Wittes argument correctly suggests that pro-choice opposition to democratic deliberation has been caused by Roe itself. As conservative defenders of a status quo that is largely insulated from democratic pressures, pro-choice activists simply have little incentive to engage those who disagree with them. Roe has therefore undermined a deliberative debate on the moral question that most deeply divides Americans.

President Obama simply can’t have it both ways. Either abortion access is an uncontestable right that “shouldn’t be subject to state referendum” or it is a contestable right we should collectively “work though” in popular and representative institutions.

It is, of course, understandable that Obama wants to please his pro-choice base and appeal to pro-life citizens. But given the gravity of the issue, Obama nonetheless owes all of us a philosophically coherent argument.

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