A Modest Proposal For Getting Rid Of Roe

We could heal the abortion wound, end the battles and reaffirm the integrity of American democracy if we had the guts to use the Constitution's own mechanism for introducing big, permanent changes to American law. We should get Congress to propose and the nation to ratify a constitutional amendment.

Well, yes, that's a fine idea. However, we don't have anything like the national consensus to support a Constitutional amendment on the issue.

Unless the author is proposing some sort of compromise. More on that in a moment.

Ever since the 7-2 Roe decision, supporters of abortion rights have been nervous — with good cause. The right to have an abortion could be abolished by a one-vote majority of the Supreme Court. It was only created in the first place because of the Make-a-Wish theory of jurisprudence. The American people had never written it into the Constitution, but the justices (closing their eyes and wishing hard) discovered it there anyway.

That one's going into the quote file: "the Make-a-Wish theory of jurisprudence." I love it!

I wrote about this point in a previous post. Representative democracy is slow to make big changes, especially in a Constitutional republic like ours. One can get very weary of waiting for a national consensus to evolve. At such times, it's tempting to want to take the power away from the people, to give the decision to a small group of elites who can impose their views upon the nation. Essentially, this is the strategy that the Left has used to win many of its victories, including the oh-so-precious right to kill one's children. If they had been patient, if they had built their case slowly, if they had taken the time to win over people's hearts & minds ... they might have been able to legalize abortion through the democratic process. Instead, they took a gamble. They decided to bypass the people, go to the courts, and hope that the people would eventually fall in line behind them.

That didn't happen. Instead, Roe has polarized American politics for 30+ years with no signs of going away quietly. Certainly, other issues have also been divisive (as I wrote above), but abortion is the nuclear weapon in the Culture Wars. As such, Roe has driven much of the conservative backlash that has the People For the American Way so panicked. As a result of that backlash, we now have a (mostly) conservative President and a (mostly) conservative majority in the Senate. If they work together, they can appoint conservative judges at all levels of the federal judiciary.

Thinking from the Left side of my brain, that's a scary possibility. If the Constitution is really a "living" document and all of our rights are entirely dependent on the Courts, then these are frightening times. Activist right-wing judges could do all sorts of crazy things. Instead of finding the "right" to abortion hidden in the penumbras of the Constitution, perhaps those same penumbras could also include all sorts of nasty Nazi weirdness! As long as we're looking at foreign laws to support cases like Lawrence, why don't we consult the Vatican? If you've pinned all of your hopes on judges, then the possibility that those judges might turn against you is terrifying.

Fortunately, the Right side of my brain reminds me that most conservatives already know this. We don't want activist judges on either side, Right or Left. We've been burned by judicial overreach, and we want to put a stop to it. Government of the people, by the people, and for the people ... remember?

Back to the column:

The solution is to take abortion out of the court's hands and give the issue back to the people. The court could dump Roe and let state legislatures make abortion law, as they used to. But this is not going to happen any time soon. A stable majority of Americans has backed legal abortion for years. (Majorities also favor restrictions after the first trimester and parental notification for minors.)

As stated before, I like the idea of restoring our democracy. So I agree with the basic idea here.

However, Mr. Gelernter is wrong on the rest of his points. Firstly, many polls (such as these polls being proclaimed by the Susan B. Anthony List) actually show pro-life majorities. Admittedly, those majorities require allowing an exception for rape & incest, with which I strongly disagree. Of course, other polls (such as these polls) show pro-choice majorities. Why the discrepancy? The folks over at Religious Tolerance (who actually seem to be tolerant, unlike many other people who stress the importance of "tolerance") have an excellent explanation on why polls about abortion are inaccurate at best. To summarize: The way that pollsters ask their questions has a huge influence on the way that people respond. With all of the strong opinions about abortion ("Keep your rosaries off of my ovaries!" vs. "Abortion is murder!"), it's difficult to imagine how a pollster could approach the subject in a truly unbiased way.

If polls are useless, what else can we do? Well, I seem to recall a certain election in November of 2004 in which pro-life candidates achieved some huge successes. As referenced in a previous post, our state legislatures are taking some bold steps to try to rein in the excesses of abortion, as far as they can go within the boundaries that the Courts have set. This also brings up my second problem with Mr. Gelernter's analysis: I question the use of the word "stable" to describe American attitudes toward abortion. Hey, even NOW's president admits that they're suffering from "an increasingly loud and empowered backlash" and poses the question: "Has our country lost its way?" (Answer: Yes, but we're trying to find it again, and NOW isn't helping.) The years following Roe have been marked by a steady movement in American politics ... toward the Right. How much of that movement can be explained by opposition to legal abortion? I don't know for sure, but I suspect that abortion is at least a factor, even if it's not the factor. Is it the Roe Effect? Again, I don't know for sure, but I have my suspicions.

Finally, I'm not sure that public opinion has that much influence on the Courts. Of course, in an ideal world, judges would simply decide cases by consulting and (when necessary) interpreting the relevant laws. Public opinion shouldn't matter at all. However, we live in the real world, and public opinion probably has a part in Court decisions. On the other hand, when the Supreme Court declared open season on private property in the Kelo decision, the fact that many people thought they were power-mad didn't seem to be a factor. And then there's the recent decisions about the Pledge of Allegiance.... It seems that the role of public opinion in Court decisions is not particularly significant, if it exists at all.

Back to the column for the conclusion:

How can democracy reassert itself given American political reality? Congress could propose, and the nation could ratify, a two-part constitutional amendment.

Part one would legalize abortion with suitable restrictions. Part two would nullify Roe and reaffirm that only Americans and their elected representatives have the power to make law in this nation. All courts would be implicitly instructed by this slap-in-the-face clause to butt out of law-making.

Obviously, pro-abortion liberals would gain if such an amendment were ratified. Anti-abortion conservatives would too — not in their fight against abortion, perhaps, but as Americans. They can live in a nation where abortion is legal and democracy is under a cloud, or a nation where abortion is legal and democracy has been resoundingly reaffirmed.

Here's that compromise proposal that I mentioned earlier. This is the big solution, folks. Savor it. It is wise and just, and all should delight in it.

Um, no.

For starters, I have real trouble believing that any pro-lifer would agree to this compromise, unless "suitable restrictions" meant "illegal except in cases of rape, incest, or threat to maternal life". Personally, I would never support a Constitutional amendment that would explicitly allow any significant number of abortions. I would happily support lesser forms of legislative action that might be considered as a "compromise", but only as a purely practical realization that preventing some abortions is better than preventing none. That said, I won't stop fighting for a total commitment to protect unborn children ... which is why I could never support a "compromise" Constitutional amendment.

See, ordinary laws are fluid. Older laws can easily be repealed or modified by future legislative action. I can accept a compromise law for now, and then keep working for a total victory. Amending the Constitution is different, more permanent. If I accepted a compromise amendment like Mr. Gelernter suggests, it will be extremely difficult to keep fighting for a true right to life. It would be like the Allies patting ourselves on the back after D-Day and deciding to stop the offensive against Nazi Germany ... before we liberated the death camps. No.

On the other side, can anyone seriously imagine NARAL, Planned Parenthood, or NOW agreeing to a Constitutional amendment that would allow "suitable restrictions" to abortion? Remember, these are the same people who believe that:

• your teenage daughter should be able to get an abortion without telling you,


• public funding should pay for abortions,


• partial-birth abortion is just fine, and


• abortion clinics don't need any governmental regulation to ensure patients' safety.

These aren't compromise-minded people. I know, I used to be one of them. They're stuck in a trench-warfare mindset that allows for no ground to be surrendered. Give an inch to the anti-choicers, and they'll take a mile. Allow any compromise, and the next step will be a real-life creation of the fictional Gilead. To be fair, if you truly believe that abortion is 100% about women's rights, then there isn't any room for a real compromise.

Summary: Pro-lifers wouldn't accept it. Pro-choicers wouldn't accept it. Mr. Gelernter has an interesting idea, but his proposal would be killed by both sides of the debate before it could gain any serious traction.

Here's my counter-proposal: Tear down Roe and get the Courts out of it altogether. Let each state work out its own abortion regulations. The debate will continue, but it will be a healthier debate because the people will actually have a say in how it goes. Furthermore, the situation will remain fluid, so that the nation's abortion laws can properly reflect the evolution of our attitudes on the subject. When a true consensus develops, then we can try for a Constitutional amendment that reflects that consensus.

However, the mere existence of such a consensus will mean that the great Abortion War will be over. Just as no sensible person in modern America wants to return to the days of slavery, there will be a time when no sensible person can consider the idea of legal abortion. May that time be soon!

(cross-posted to Naaman the Ex-Leper)