George Will: Roe v. Wade Backfire

Jan. 19, 2003 -- This Wednesday is the 30th anniversary of the most imprudent act of judicial power since the Dred Scott decision.

In Dred Scott, the Supreme Court tried to settle the slavery controversy. Instead it hastened civil war.

With the Roe v. Wade decision 30 years ago, the court tried to end the debate about abortion.

Instead, it inflamed the issue and embittered our politics — because the court, by judicial fiat, abruptly ended what had been a democratic process of accommodation and compromise on abortion policy.

States Were Dealing With It

Before the court suddenly discovered in the constitution a virtually unlimited right to abortion, many state legislatures were doing what legislatures are supposed to do in a democracy: They were debating and revising laws to reflect changing community thinking.

In the five years before 1973, 16 states, with 41 percent of the nation's population — including then-Governor Reagan's California — liberalized their abortion laws.

Remember that when the next Supreme Court vacancy — perhaps this year — ignites a confirmation battle centering on the possibility that a one-vote change could reverse Roe v. Wade.

But reversal would not make abortion illegal. It would just restore abortion as a matter for states to regulate. And probably no state would outlaw first trimester abortions, which are almost 90 percent of all abortions.

Changing Culture

Whether you like it or not, the culture has changed a lot since 1973. Today, abortion ends more than one in five pregnancies. Abortion is one of the most common surgical procedures.

The widely exercised right to abortion is not about to be extinguished. But neither is the debate about abortion, which continues to trouble thoughtful people.

Unfortunately, thirty years ago the Supreme Court said to the American people: Shut up. Pipe down. Your debate about abortion is pointless, because we will decide policy.

Thus, did the Supreme Court diminish American democracy.