To understand the problem with Roe we have to consider it from a different perspective than the usual one. The question is not “should abortion be legal,” or even, perhaps “under what conditions should it be legal.” The question is who should decide such questions. If we believe that we are “created equal,” then abortion is, in America in 2018 at least, an issue on which “we the people” ought to be able to legislate.

It’s time for Supreme Court nominee hearings, and that means it’s time, once again, for politicians to wring their hands about Roe v. Wade. A 2003 email from Judge Kavanaugh, then working in the executive branch, has surfaced in which he was asked if lawyers should regard Roe as “settled law.” “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level,” he wrote.

As an historian I am not sure what, exactly, the term “settled law” means since history seems to demonstrate that no precedent is beyond challenge. Rather than asking if Roe v. Wade is, somehow, “settled,” we should ask if it is good law. As a constitutional matter, that it very much open for debate. We can do better. We should not settle for Roe.

To understand the problem with Roe we have to consider it from a different perspective than the usual one. The question is not “should abortion be legal,” or even, perhaps “under what conditions should it be legal.” The question is who should decide such questions. If we believe that we are “created equal,” then abortion is, in America in 2018 at least, an issue on which “we the people” ought to be able to legislate.

Just about everyone agrees that abortion involves conflicting rights claims—between a woman and a gestating baby. Supporters of legal abortion like to simplify their argument as a defense of “a woman’s right to control her body.” Yet except for a few fanatics, such as Professor Peter Singer of Princeton, who goes so far as to assert that one may even kill a child after it has been born with no moral qualms, everyone recognizes that there are two persons involved. Almost everyone concedes that, barring serious health concerns, abortion ought not to be legal late in a pregnancy.

Most Americans believe abortion should be, as a general rule, prohibited after three months. That would be a common international standard. In France, for example, it is legal at will only for twelve weeks, after that it is legal only is two doctors agree that bringing the baby to term would have serious health consequences. In the U.S., by contrast, late term abortion is, in law, much easier to obtain.

Brain waves begin at roughly day forty. That might square with the idea of a “person” being present once there is a functioning brain that has the potential for consciousness. Basic biology suggests that a baby is an embryo for eight weeks and a fetus for the remaining seven months of pregnancy. That would seem to be a plausible line. The “pro-life” view is that life begins at conception (a unique life with human DNA exists at conception. To kill it is to take a human life.) Many Americans disagree. Many who consider themselves “pro-choice” would suggest that when the baby is viable outside the womb it should enjoy legal protection.

In short, the question, as everyone who is not an intellectual or a fanatic concedes, is about competing rights claims of gestating baby and the woman who is carrying that baby. Alternatively, we might say the debate is about at what point in development a baby rightfully deserves legal protection. The question is, therefore, precisely the kind of question that, in a democratic republic, belongs to “we the people.” When the issue is how one person should life his or her own life, or how they ought to associate with others, our republican premises suggest we should, as a rule, trust individuals. But when we’re talking about the life and death of another person, there is obviously, a case where the law might be involved.

To understand why this issue belongs to “we the people,” acting in our legislative capacity, it might help to ponder the question of human equality. As little reflection shows that if we take seriously the proposition that we are created equal, then this issue is one that belongs in the political arena.

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