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Trying to have it both ways on abortionDavid Ignatius writes in today's Washington Post: "The bickering over the Miers nomination epitomizes the right's refusal to assume the role of a majoritarian governing party. The awkward fact for conservatives is that the American public doesn't agree with them on abortion rights."This statement seems to me to repeat one of my favorite "pick one or the other!" speeches, because this statement is something of a canard. To my understanding, in order to write that line, it seems to me that Ignatius is not only tacitly assuming that Miers is a vote for Roe v. Wade (n1) and its progeny (hereinafter, Roe et al), rather than against it (which, as we have seen, is a debatable proposition, although I tend to agree with him), but also misrepresenting, to some extent, what proposition those cases stand for. I say this because the statement seems to rest on the understanding that Roe et al rendered abortion legal, Roe et al are all that keeps abortion legal, overturning Roe et al would render abortion ipso facto illegal nationwide, and therefore, that nominating anyone to the Supreme Court who would overturn Roe et al is necessarily in conflict with the views of those 54% of Americans Ignatius' poll numbers indicate believe that abortion should be in some ways, shapes and forms legal at some points during pregnancy. We must begin by correcting this misapprehension, as - whether it be deliberate or unintentional - it considerably subverts the debate. Roe did not make abortion legal, it merely struck down laws that impeded the excercise of that "right." The obvious consequence of this fact is that, if it were overturned, such an action would not make abortion illegal, but rather, the new legal regime would permit the criminalization by state legislatures. It will place the question back into the political arena, which is, by definition, a majoritarian enterprise. Surely, then, the main failsafe against the criminalization of abortion is not illegitimate judicial fiat, but democratic participation (n2); not an archaic and dubious court case, but the actions of the supposedly overwhelming majority of Americans who are pro-choice. Opposition to abortion is such a minority position in modern America that less than four in ten Americans describe themselves as pro-life; as Ignatius contends in the same article, abortion commands broad and sustained majority support in this country: "A CNN/USA Today/Gallup poll in late August found 54 percent describing themselves as pro-choice and only 38 percent as pro-life, roughly the same percentages as a decade ago." Surely, if this broad, sustained majority for choice is so solid, reliable and non-evanescent, it would swiftly dispose of those who passed laws interfering with that right? The majority would simply ensure that legislators who voted for laws restricting their cherished abortion rights were removed and replaced by legislators who would not. The Constitution may not guarantee a right to abortion (see infra at §I.B), but it certainly guarantees a right to live under a republican form of government (see U.S. Const. Art. IV, §4), which most definitely protects the right of the majority to a form of government in which they can cease electing elected officers who no longer vote in accordance with the majority's expectations and desires (see Killian & Costello, The U.S. Constitution: Analysis and Interpretation, 1992 ed., pp.891-893). Roe, furthermore, was wrongly decided, and even supporters of abortion rights - liberal icon and constitutional scholar John Hart Ely (see The Wages of Crying Wolf, reprinted in Ely, On Constitutional Ground), even - concede as much. That scepticism reaches even the liberal bloc of the Supreme Court; Justice Ginsburg has questioned its validity, and as Woodward notes in The Bretheren, even some Justices who voted for Roe understood as much: "[Like Blackmun,] Powell also made abortion his summer research project. As a young lawyer in Richmond in the 1930s, Powell had heard tales of girls who would “go away” to Switzerland and New York, where safe abortions were available. If someone were willing to pay for it, it was possible to have an abortion. Powell came quickly to the conclusion that the Constitution did not provide meaningful guidance. The right to privacy was tenuous; at best it was implied. If there was no way to find an answer in the Constitution, Powell felt he would just have to vote his “gut.” He had been critical of Justices for doing exactly that; but in abortion, there seemed no choice. When he returned to Washington, he took one of his law clerks to lunch at the Monocle Restaurant on Capitol Hill. The abortion laws, Powell confided, were “atrocious.” His would be a strong and unshakable vote to strike them. He needed only a rationale for his vote."(Woodward, The Bretheren, pp. 272-273) (Emphasis added). n3. As Stewart saw it...[t]he public was ready for abortion reform...But the state legislatures were always so far behind. Few seemed likely to amend their abortion laws. Much as Stewart disliked the Court’s being involved in this kind of controversy, this was perhaps an instance where it had to be involved.(Id., p.196). n4. As Justice White's dissent in the companion case to Roe, Doe (n5), noted: I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally dissentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand.(Doe, 410 U.S., at 221-2)(White, J., dissenting). Even if one buys into the idea that there is a right to privacy in the Constitution, the connection of that right to the right to an abortion is an exceeding tenuous leap. So what we are left with is less an inpenetrable keep and more of a white elephant. Worse yet, it is a white elephant in defense of an idea which seems to require no defending, given the broad, sustained majority support for abortion rights which pro-choice people claim, an assertion your article repeats. What puzzles me, David, is this. With all the foregoing being true, why all the fuss to defend Roe? Surely, the left would prefer to govern through the instruments of democracy rather than the instruments of judicial fiat. With burgeoning Republican majorities and an increasingly Republican-appointed judiciary, I expect the left to get increasingly concerned about judicial activism as they discover the sharp end of it in the next few decades. But anyway, furthermore, Roe et al are superfluous; a case of only dubious merits, and one that is, in any case, defending a right which the majority do not wish to dispense with. The sole purpose of protecting a particular right by placing it on the level of a constitutional right, it seems to me, is that certain rights are considered so important, so "fundamental to the concept of ordered liberty", that they must be protected by requiring supermajoritarian support for their invasion (accord Rappaport & McGinnis, Our Supermajoritarian Constitution). As you, yourself have pointed out, there is not even majoritarian support - still less, supermajoritarian support - for the invsaion of abortion "rights". So why the defense of Roe? If you believe the figures, sincerely, there is no need for Roe et al. Is there? Us pro-life folks are such a minority that the idea of us carrying the day in a majoritarian vote on abortion summons visions of my reaction on seeing a spider: it's tiny, but I'm terrified! So the pro-life lobby, you tell your readers. It's tiny, but terrifying! They may be a minority, but the only way we can beat them is through a supermajoritarian requirement! Overruling Roe would not merely have zero effect on the abortion landscape - if your statistics are correct - but it would help to normalize the political landscape. Presidential elections would not merely be a pantomime in which each candidate tries to avoid saying anything meaningfull about what kind of Supreme Court Justices they would appoint, and Supreme Court nominations would not merely be a pantomime where the nominee tries to avoid saying too much about how they would rule on Roe et al. Furthermore, once a party's views on abortion actually mattered, surely your pro-choice majority would eviscerate my pro-life Republican party? As the Democrats are discovering, you can only be out of step with the public on so many issues before paying a price at the ballot box. Once the rhetoric had real-life consequences, the GOP would have to either destroy its support from the majority, by voting to criminalize (or at least, regulate) abortion, or destroy its support from its benighted base by failing to do so. I would think that breaking the GOP's back, at no practical cost, would greatly appeal to Democrats. So with all these reasons why Roe is, at best, superfluous, it seems to me that the only reason to defend Roe, really, is if one does not believe the figures. If that 54% were perhaps more conflicted than the headline figure suggested -- if, perhaps, the general public were more sceptical about abortion on demand than NARAL would have us believe; if, as it turned, out, many women saw a disconnected about NOW's rhetoric about women's lives and their advocacy for a process which terminates many female children's lives before they take their first breath; if that 54% was in fact the results of carefully-worded poll questions rather than deep pro-choice conviction -- then, and only then, would the pro-choice lobby have good reason to defend Roe to the death. Is my logic flawed, David? If not, it is hard to take seriously both the claim that Roe must be defended at all costs and that abortion is supported by a broad majority of Americans. If either one is true, the other is moot. ____________ Footnotes: n1. Roe v. Wade, 410 U.S. 113 (1973) n2. Cf. Bork, The Tempting of America p.264 ("Aren't results more important to people than processes? Isn't the insistence upon reasining from the actual principles of the Constitution an arid intellectualism that ignores human yearnings? An adherence to logical systems at the expense of social justice? One answer is that the result that is 'good,' though not justified by the Constitution, is not the result that the elected representatives of the people thought [was] good...[L]egal reasoning is an intellectual enterprise essential to the preservation of freedom and democracy.") n3. In other words: Powell decided which result best pleased him, and set out to find a rationale - any rationale - which could carry him to that result. It rather goes without saying that this is the very definition of the results-oriented jurisprudence I was castigating recently. See also, Bork, supra, pp.262-4. This approach was summed up by Clinton administration Solicitor-General Seth Waxman during the Florida Prepaid oral argument. Questioned by Justice Scalia as to why the Justice Department would find attractive a logic that would..., Waxman averred that "we are attracted by any notion, or principle, the logic of which carries us to a result we think is just." n4. I.e., when a majority of the Supreme Court decides that a particular public policy has become important for the country, but the people have not yet recognized as much, the Court should short-circuit the debate by suspending the operation of Art. I, §1, Cl. 1 of the Constitution ("All legislative powers herein granted shall be vested in a Congress of the United States") (emphasis added) - a clause of so little consequence that the embarrassed framers sought to hide it right at the start of the Constitution, where, presumably, no-one would think to look - in order to ensure that the necessary policy is implemented. "[T]his would be an unqualified good, were it not for a trend in government that has developed in recent centuries, called democracy." (Scalia, A Matter of Interpretation, 1997 ed., p.9) n5. Doe v. Bolton, 410 U.S. 179 (1973). |
    
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