G. Randall Lee reflects on Roe v. Wade at 40

Lee Cropped 2In January, NBC News commemorated the 40th anniversary of Roe v. Wade by commissioning a poll, which the network ultimately used as an opportunity to declare, “Majority, for the first time, want abortion to be legal.”  Even as NBC News was trumpeting the triumph of the proponents of legalized abortion, however, Time magazine, no particular friend of the pro-life movement, was proclaiming on its cover, “40 Years Ago, Abortion Rights Activists Won an Epic Victory With Roe v. Wade.  They’ve Been Losing Ever Since.”


Ironically, these two proclamations were released about the same time the second half of the Super Bowl was being held in limbo because of a stadium blackout.  It was ironic because when we have no way of keeping track of what’s going on in a football game or even who’s winning, we stop the game so we can fix the problem.  Yet, when two of America’s leading sources of news can’t come to a uniform sense of where the abortion debate is after forty years of discussion, discourse goes on as usual, and no one seems to think there’s even a problem to fix.


Perhaps the most telling question from the NBC poll was one that escaped mainstream distribution:


“Do you approve or disapprove the Roe versus Wade U.S. Supreme Court decision?  If you don’t know enough about this to have an opinion, please just say so and we’ll move on.”


Forty-one percent of those questioned indicated they didn’t know enough about Roe to have an opinion about it, and another two percent indicated they weren’t sure whether they knew enough or not.  Thus, after forty years of relentless public debate about the case, forty-three percent of those polled had been left in the dark.


Philosopher Alysdair MacIntyre has insisted “[t]he most striking feature” of our moral disagreements is “their interminable character.”  MacIntyre explains these debates not only “go on and on and on,” but more importantly “[t]here seems to be no rational way of securing moral agreement in our society.”  Although one might suggest that this results from Americans lacking a common moral vision or the issues having so much that needs to be said about them, the answer may be more procedural: that we allow ourselves to communicate about these issues in ways unlikely to be productive.


Another law professor once told me rhetoric is the art of winning an argument because one “can yell louder than his adversary.”  This definition seems beneath the calling of a lawyer.  Lawyers, after all, are “citizens with a special responsibility for the quality of justice.”  Lawyers are people in whom society has entrusted the duty to ensure that public discourse is conducted in a manner that can be fruitful and should ultimately yield truth.  If after forty years of debating Roe v. Wade we have made little if any progress toward resolution, lawyers should be the persons asking the question, “Have the lights in the stadium of public discourse actually gone out?”


Immediately after Roe, the debate surrounding the case was between those who were pro-abortion and those who were anti-abortion.   It remained that way only as long as it took the former anti-abortion forces to recognize they were more accurately pro-life.  Shortly thereafter, pro-abortion advocates realized they actually were not so much “pro-abortion” as they were “pro-choice.”  From there the debate shifted to one between those who were pro-choice and those who would “choose life,” and this then shifted to a debate between those who would choose life and those who would “choose choice.”  Is such a summary merely a caricature of the abortion debate in America, or, indeed, does it capture our debate?


In his book A Different Kind of Perfect, George Lane describes how he and his wife Thea ultimately decided to give birth to their daughter Amy after testing revealed Amy had Downs Syndrome.  Having already heard from every sort of professional imaginable, the couple was left with a weekend to make their decision.  As George prepared himself for him and Thea to spend the weekend “talking out” their choice, Thea informed George she had other plans: Thea was sending George on retreat.  When George protested that the couple needed to discuss their choice together, he was surprised that Thea told him they would.  “We will,” Thea said, “enter into silence, speak with our hearts, and listen in love.”  Ultimately, George would acknowledge Thea had been right about the nature their discourse needed to take.  Three days later, the couple shared that they had come to one decision.