In view of the evidence of continuing controversy in Congress, the academic community, and in the structure of public opinion, it is strikingly odd that Justice Powell insists so strongly in his recent opinion for the Court in Akron v. Akron Center for Reproductive Health that the “basic principle that a woman has a fundamental right to make the highly personal choice whether or not to terminate her pregnancy” is one which is now securely embedded in our constitutional tradition. His principal rhetorical strategy in defending the Court’s pro-abortion conclusions is to counsel uncritical deference to the wisdom of the past. Although there are still those who believe that Roe v. Wade is based on erroneous constitutional interpretation, Powell contends, we should remember that “the doctrine of stare decisis … demands respect in a society governed by the rule of law.” The Court reaffirms Roe v. Wade, Powell states, because of this respect. The majority of the Court is composed of good conservatives who defend our constitutional tradition against those who would debunk it in the spirit of revolutionary innovation.
Powell does also give some evidence that there is reason to believe that Roe v. Wade was well decided. He points to an unusually lengthy period of deliberation, the fact that it was decided by a one-side 7-2 majority including the Chief Justice, and the fact that it has been the basis of every subsequent abortion decision by the Court. This reliance on “circumstantial evidence” is unusual, especially because it is not supported by features of the Court’s argument itself which made it compelling. He does not show us why the men of 1973 were convinced that Roe v. Wade’s “fundamental principle” was so powerful that it was able to obliterate almost completely all other considerations. Does Powell’s unusual and total reliance on circumstantial evidence amount to an admission of weakness in his case?
It is also possible to see weakness in Powell’s manner of arguing against the substance of Justice O’Connor’s dissenting opinion. He does not really call attention to any logical or empirical flaw inherent in her argument. He, writing like a “pure” conservative, thinks it sufficient to bring to light its radical implications. It would allow the State to give precedence to “preserving potential life” over the woman’s right to choose to have an abortion in virtually every situation. Consequently, it “would uphold virtually any abortion-inhibiting legislation.”
It is Powell’s implication, of course, that O’Connor would allow the tyranny of the majority to destroy the rule of law. She would, more precisely, permit the prejudices of the majority to deprive a particular minority of its constitutional rights. She would have the Court abdicate its primary constitutional responsibility.
There is a certain strength in this expression of indignation. It is a genuine part of our constitutional tradition. But, according to this tradition, our possession of rights is not merely dependent on the decisions of our fathers which have become embedded in tradition. The limitation of the majority by the rule of law is ultimately justified with reference to “the Laws of Nature and of Nature’s God.” Human beings have inalienable rights which even the majority must respect. Our knowledge of these rights is due to the intelligibility of human nature, a nature which was created by a God who is all-wise and all-powerful. Surely the “right to privacy,” in particular, which is nowhere explicitly mentioned in the Constitution, must owe its legitimacy, in the final analysis, to an argument from the “spirit” of the Constitution, from the philosophical opinions it presupposes to be true. This conclusion makes more sense than Justice Douglas’ talk of “penumbras” and “emanations” in his defense of the constitutional foundation of the right to privacy in his Griswold opinion. In any case, given the alleged dangers of O’Connor’s radical project, it is strange that Powell did not see fit to give a stirring defense of the foundations of the right to privacy and its legitimate application to abortion questions.
Even if Powell believes that those who remain unconvinced are simply too obstinate to ever be persuaded, should not he have reminded pro-abortion partisans that the force of argument is on their side? After all, there is a powerful tendency in our tradition to regard conservatives as simply stupid or unenlightened and to sometimes too readily embrace the opinions of those who claim to oppose tradition with reason. When one articulates the meaning of the Constitution, does not one mean to speak both traditionally and reasonably? In America, is not stare decisis ultimately an assertion of the continuing self-evidence of the self-evident truths?
Does not Powell, then, reveal unwittingly through his remarkably conservative rhetoric that he is unable to confront squarely O’Connor’s logical destruction of the Court’s opinion in Roe v. Wade? Does not he really oppose logic with precedent, reason with tradition? He really charges O’Connor with nothing more than destroying the foundation of pro-abortion constitutional interpretation. Like the typical angry conservative, he charges his opponent with being nihilistic instead of being irrational.
We, of course, may find it quite ridiculous to identify the pro-abortion revolution in constitutional interpretation of 1973, with its profound effect on almost all existing state law, as part of our great tradition. But ours is a revolutionary tradition. In judging the results of revolutions, however, we are not vulgar enough to use success or public opinion as our criterion. Our standard of justice transcends the sphere of arbitrary human decision. Consequently, we must prefer the results of O’Connor’s destructive logic to Powell’s uncritical conservatism. There is good reason to hope that Roe v. Wade will, in time, be reversed, and that history will show that Justice O’Connor provided a large part of the foundation for the reversal.