The march goes on

Joseph F. Petros III Former Executive Editor, Notre Dame Journal of Law, Ethics & Public Policy
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Another year, another big turnout.

Thirty-eight years after the Supreme Court declared the abortion issue to be settled law in Roe v. Wade, a crowd of over 200,000 flooded the streets of Washington on Monday for the annual March for Life. Even following an election that focused primarily on fiscal and economic issues, the crowd this year was as large as ever, mobilized by its opposition to the mandated legality of abortion in the United States.

Reflecting on this event, one could glean many broad conclusions. Yet I offer a modest one: that abortion is still a contentious issue in the United States. From year to year, election to election, decade to decade, abortion is an issue that just will not go away.  It continues to evoke a passionate outcry from citizens eager to have a voice in shaping the law.

We have a method for dealing with contentious issues in America: it is called democracy. This was the great American experiment, and thus far it has served us well. But democracy no longer plays a part in abortion law. Indeed, the fundamental flaw of Roe v. Wade is that it effectively cut this contentious issue off from the democratic process. And when democracy is cut off, Americans become agitated.

Abortion is today unlike almost any other political issue because voters cannot turn to their legislatures to bring about the change they desire. The health-care law can be repealed.  Immigration laws can be passed. State smoking bans can be enacted. But democracy cannot touch abortion. The unelected branch of the federal government has decided what is best for every state in this regard, giving abortion rights the high status of constitutional protection.

One can argue that the very purpose of the Constitution is to ensure that certain rights cannot be revoked or infringed through the ordinary democratic process. And to that extent, he or she would be right. Constitutional law has proven to be a valuable safeguard for the rights that Americans have declared most dear. Yet with this safeguard comes great responsibility and great power in the hands of the judiciary. Significant harm can be done when judges, under the color of constitutional law, remove issues from the democratic process that the American people never intended to remove. Abortion is one of those issues.

America’s constitutional system is well designed to accommodate the changing opinions and realities of society. However the vehicle it provides to effect such change is the legislative process, not evolving judicial decrees regarding what the constitutional limits on legislation should be. The limits imposed by the Constitution on state legislation are few and specific, so as to allow society to continuously discuss and tackle the issues that engender the most disagreement. Most reasonable Americans simply do not see the right to abortion among those few and specific limits in the Constitution. Americans expect that the words of their laws and constitutive documents are to be given their plain meaning, not a hidden meaning to be decoded by an elite few in the judiciary.

And so abortion will continue to be a central issue in American politics. The March for Life is a reminder that when law does not reflect the expressed will of the people, Americans feel violated. And rightfully so. The people of this country cherish democracy and the systematic way in which we apply it. At times throughout our history when the voices of certain citizens have been ignored, the democratic cry for justice has always prevailed.

The voice of democracy is always loudest when democracy is silenced. So marchers, keep marching. Our voices will be heard.

Joseph Petros is a third-year law student at Notre Dame Law School and is Executive Editor of the Notre Dame Journal of Law, Ethics & Public Policy.