The proper way to assess Supreme Court rulings is not whether you agree with the results but whether you agree with the reasoning that produced them; more precisely, whether the result can be traced to a reasonable reading of particular constitutional provisions or applicable statutes.
In the case of Roe v. Wade there is a Grand Canyon-size gap between result (the legalization of abortion by striking down various state laws against the practice) and the incoherent legal reasoning put forth in justification of it.
In an honest world, even acknowledging a general presumption of fealty to precedent, Roe should be overturned because it found something in the Constitution--a right to abortion based on an antecedent "right to privacy"--that the document doesn't contain or compel, and was never remotely envisioned as containing by those who crafted it.
To be sure, a certain hedging of the bets when constructing any list of rights was always intended by the language of the Ninth Amendment, but the idea that we might possess more constitutional rights than the Constitution specifies in no way reduces the skepticism that should greet the sudden "discovery" of previously hidden ones in response to the ideological demands of the moment and the preferences of those doing the judging, as so egregiously occurred in Roe.
Roe was both a legal mess and a political disaster, dividing the nation since to a much greater extent than the issue of abortion itself had prior. It represented a dramatic acceleration of an already detectable tendency toward judicial activism on the part of the court as it needlessly and provocatively waded into areas that the people's representatives and the broader democratic process which places them at the center should have jurisdiction over.
Roe also began the process of undermining and fatally politicizing the nomination and confirmation process, as every nomination to the court since has been scrutinized primarily in terms of its implications for the preservation of the imagined right to abortion.
The more the court behaves like a legislature, the more issues it seeks to decide in lieu of legislative role, the more it becomes subjected to the vagaries of politics. And the more the court rules in an increasingly thinly disguised political fashion the more politicized both the court and the nomination and confirmation process become.
The court's discovery of new rights that just happen to conveniently align with liberal policy goals suggests an urgent need to rediscover the concept of judicial humility and thereby resist what Robert Bork called the "temptation of politics."
The rule of law is crucial to the preservation of liberty, and judicial deference whenever possible to elected legislatures is likewise crucial to the best means of preserving liberty, which is democracy. Far more important than preserving legal access to abortion is thus undoing the corruption of the federal courts and the confirmation process that Roe wrought.
Proper, rigorous constitutional interpretation by judges cognizant of the proper (meaning limited) role of the judiciary in our constitutional system of checks and balances matters because without it any political victories the court delivers, as with Roe and abortion, will be inherently perceived as illegitimate in a fashion that renders them unstable and ephemeral, which is why even those of us who wish to preserve some form of legal access to abortion should welcome its repeal.
Fear of something (in this case the longstanding fear of Roe being overturned, which has animated so much liberal thinking regarding our courts in recent decades) can often be worse than its actual occurrence--the overturning of Roe wouldn't spell the end to legal access to abortion as so many shrilly claim; rather, it would simply return the issue to whence it came and properly belongs, which is state legislatures, for the people to then decide on a state-by-state basis.
Those who favor legal access to abortion could then work for it the honest way (unlike in Roe) by doing the hard slog of persuading our fellow citizens and passing legislation to that effect in our democratic process.
Or, better still, if we truly wish to establish a constitutional right to abortion (that is, to make the Constitution say what supporters of Roe unconvincingly pretend it says), we could use the process for amending the document that the document itself provides and which remains the only legitimate means of updating constitutional provisions (as opposed to judges doing so, as with Roe, in accord with their thinly disguised ideological predilections).
Precisely because Roe poisoned the well of democracy for both sides--for the "pro-choice" side by enticing them into scorched-earth tactics to defend it, and for the "pro-life" by erecting an abortion regime by judicial fiat--the thought even occurs that overturning it, and thus shifting our battles over abortion back to the political arena where they belong, would reduce the much noted incivility pervading our political discourse.
Rather than fight over which members of an unelected robed tribunal would rule us, it would force "we, the people" to negotiate and compromise and persuade and thus rediscover the frustrations and rewards inherent in the shared duty of ruling ourselves.
Freelance columnist Bradley R. Gitz, who lives and teaches in Batesville, received his Ph.D. in political science from the University of Illinois.