Bigger than Roe v. Wade

Posted: January 25, 2013

As with many so-called landmark Supreme Court decisions, the effect of Roe v. Wade on the actual lives of Americans has been greatly exaggerated. In fact, the impact of most Supreme Court decisions is extraordinarily slight compared to the changes wrought by the other two branches of the federal government and by other levels of government, not to mention technological innovation and social change.

The differences in judicial philosophy among the nine sitting Supreme Court Justices fade into insignificance if looked at from another perspective. While Antonin Scalia and Ruth Bader Ginsburg disagree on 80 percent of the cases that come before them (although they are good friends), this seeming evidence of stark differences is an illusion.

There are millions of legal controversies in America every year, of which a hundred or fewer ever reach the court. And within the bounds of this minuscule sample, the justices find plenty of grounds for disagreement. But if you look at the vast number of judicial precedents on which they unanimously agree, they share a remarkable unanimity on basic legal principles.

Limited landmarks

Roe, which marked its 40th anniversary this week, found that access to abortion is constitutionally protected. But before Roe, various states had already begun to legalize abortion, at least under certain circumstances. When Roe was decided in 1973, 20 states had adopted laws permitting abortion, and there is no reason to believe the trend would not have continued even without the decision.

Roe's prohibition of state laws blocking access to abortion was significantly modified in 1992 by Planned Parenthood of Southeastern Pennsylvania v. Casey. Ultimately, Casey opened the door for state legislatures to impose a wide range of regulations and restrictions that have had the cumulative effect of allowing many states to enact what approaches a de facto ban on abortion.

If Roe were overturned tomorrow, more than a dozen states would outlaw abortion. But they are the same states that already severely restrict abortion access. And in states where there is strong support for abortion rights, the status quo would not change. Abortion access in New York and California would be unaltered; South Dakota and Mississippi would simply shut down the solitary clinic still operating in each state.

In another so-called landmark Supreme Court decision, District of Columbia v. Heller, in 2008, the court for the first time explicitly recognized an individual right to own guns under the Second Amendment. Even more so than with Roe, the actual effects on American society are minimal.

Prior to Heller, Congress and the state legislatures generally behaved as if such a Second Amendment right already existed. There have been efforts - some successful, but not many - to regulate gun ownership and use. But there have been virtually no efforts to completely ban gun ownership, which in essence is all that Heller prohibits. The actual battle is over whether government can more rigorously regulate the gun trade and the kinds of weapons that are legal. So Heller has little tangible impact on the debate over gun regulation.

Rule of law

I do not mean to argue that the Supreme Court is not important. As the institution that presides over our judicial system, the high court and all the courts below it play another role whose importance is often unrecognized.

The United States has enjoyed the broadest and most sustained experience in human history of a society living under the rule of law. The rule of law is commonly defined by contrast with the rule of men. However, this does not begin to express the complexity of what the rule of law is and what it requires. It is the guarantee of due process that the rule of law offers - and its protection of free speech, property, and other fundamental individual rights - that are most precious to us as American citizens.

In the ferocious partisan battles over individual Supreme Court cases, and the personalities of individual justices, it is easy to miss the forest for the trees. It's hard for Americans to imagine life without enforceable contracts or security from government confiscation of property or the right to speak freely - rights that are easily taken for granted, but are not enjoyed by ordinary citizens in many countries around the world. Americans need to appreciate the true value of the Supreme Court and the imperfect but durable rule of law it represents.


Mark Nuckols teaches law and business at Moscow State University's Higher School of Business and at the Russian Academy of National Economy. He can be reached at mark_nuckols@yahoo.com.

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