January 20, 2003
THE WAGES OF JUDICIAL ACTIVISM:
Roe v Wade battle shifts to Congress, states (MARY DEIBEL, January 16, 2003, The Knoxville News Sentinel)Under a Supreme Court test first articulated in 1989 that lets government regulate abortion so long as the restrictions don't pose an "undue burden," the fight has shifted to Congress and state legislatures, which kept the power to regulate abortions after the first trimester.Since the Supreme Court signaled its willingness to permit new restrictions, various limits have been approved by states, including waiting periods, mandatory counseling and parental involvement where minors are concerned. Recently state statutes have outlawed abortion procedures late in a pregnancy, although the Supreme Court requires such laws to make an exception for the woman's health or life.
At the federal level, President Bush held a signing ceremony for the Born-Alive Infant Protection Act conferring personhood and declared Jan. 19, 2003, to be "National Sanctity of Human Life Day. " Bush's executive orders made "unborn children" eligible for federal insurance coverage and reinstated the so-called "gag rule" forbidding doctors and clinics that get federal funds from mentioning abortion.
Congress is expected to pass a federal "partial-birth" ban on late-term abortions, which Bush promises to sign, but there is no guarantee the new Republican House and Senate majorities will pass other restrictions.
"Millions of women have come of age controlling their reproductive choices, but it's a sad state of affairs when those rights are in such peril today," said Kate Michelman of NARAL ProChoice America. She points to the current Supreme Court's 5-4 split in support of legal abortion that nevertheless has led to 335 laws enacted since 1995 to regulate abortion.
Abortion is no longer available in 87 percent of U.S. counties. [...]
Carol Tobias, director of the National Right to Life Committee's political action committee, acknowledges, "The reality is we don't have the votes in Congress for a constitutional amendment," nor is there agreement among abortion foes on what an amendment should say.
Otherwise, Tobias said, "Everything is going our way," including public opinion polls that show a growing number of younger Americans oppose legalized abortion. The latest University of California at Los Angeles survey, for instance, found that in 2001 just 55 percent of all college freshman favor keeping abortion legal in the United States. [...]
The U.S. abortion rate started falling in 1990 and is at its lowest level since 1974, according to the Alan Guttmacher Institute.
The latest figures show 21.3 abortions in 2000 for every 1,000 women ages 15 to 44. No one knows the reason - safe sex, use of emergency "morning-after" pills, federal approval of the "abortion pill," decreased availability of surgical abortion or all of the above.
It is the great tragedy of the Court's judicial activism in Roe v. Wade that had they stayed out of the issue--which there is no readily apparent role for them in under the Constitution--America would probably not look all that much different than what's described above, but much divisiveness and anger and violence would have been avoided, and probably (though not necessarily) many lives saved. Thirty years after the fact, people mistakenly assume that abortion was illegal throughout the U.S. prior to Roe. In fact, several states had alredy legalized abortion and it was no longer the case that a woman wanting one had to resort to back alley abortionists. Had things been left to develop naturally, you'd likely have wound up with a regime where the Blue States mostly allowed abortion and the Red States mostly forbade, or severely limited, it. This would have allowed communities to reflect their own cultural values in their laws, rather than have imposed upon them the most extreme viewpoint, that mandated by the Court. This presumably would have greatly lessened the tensions that have riven society and made abortion one of the most difficult issues in the life of the nation. It will be argued, correctly, that this would have been inconvenient for people in Red States who wanted abortions, but having to travel a little to secure one is hardly an unreasonable burden and, presumably, the many women's organizations that lobby on the issue would have been more than happy to help such women deal with their transportation difficulties.
Considering how far we've moved towards this kind of regime anyway, we may be approaching the time when the Court will be able to reverse its unfortunate ruling in Roe without even disrupting society too much. At such a time, places like California and NY and other liberal states will likely become havens for those seeking abortions and, over time, you'd expect them to attract those people whose world views require abortion. Meanwhile, many (most) Southern and Western states, which retain more traditional and religiously-based cultures, will attract peoples who share a belief in classic Judeo-Christian morality. This may tend to exacerbate the cultural divide that already exists in America, but it will give people some greater level of comfort that their local laws conform to their local cultural customs and beliefs. It should also restore some degree of the community
cohesion and coherence that we've lost in recent years. That seems like a good thing.
I'm somewhat dubious of the claim you make in this post. My impression of the anti-abortion movement is that it is largely animated by the viewpoint that aborting a fetus is an act of murder. To the extent that this characterization of the movement is accurate, I don't see how making such murder legal in half the states and illegal in the other half would constitute a stable solution. The fact that the murder would be happening across a state line doesn't obviously alter the moral calculus involved.
Now, if I'm wrong about the underlying moral view that supports opposition to abortion, then the above argument doesn't stand.
I'm not sure we need a stable solution. In fact, being against Roe v. Wade is being against one stable solution. Instead, each state gets to have its own loud angry argument on the subject and decide for itself where it stands, and probably continue debating the subject for a long time. You could probably expect some states to reverse their position as their population changes.
Certainly this would be a problem for those who want a stable solution imposed on all states, be it Roe v Wade or a "Wade v Roe" complete abortion ban. But instead, a few states will allow lots of abortion, a few will restrict it entirely, and the majority will fall somewhere in the middle. People can still argue the limits in their own states and encourage others to do the same in theirs. No problem!
Kyle:
Of course it would still be murder from an objective viewpoint and it may be that we'll gradually evolve toward two nations, one more European and morally relativistic, with the corresponding social and economic decline.
Kyle - Some think that abortion is murder, but most pro-lifers think it's something less - although they lack a name as attention-grabbing as murder. I myself think that parents have an obligation to support their children, which the state can enforce, and abortion is a betrayal of that obligation. It is something a bit more severe than a deadbeat Dad, because the deadbeat Dad's money can be made up elsewhere while the abortion is permanent and total, but not of the same order as murder.
Given the Constitutional (6th Amendment) requirement that crimes be tried in the jurisdiction in which they were committed, the cross-state variances would be a stable solution. No one could be tried in one state for an abortion in another.
pj:
I think he was suggesting that pro-lifers would not be able to tolerate the thought of abortion occurring anywhere in America, nor pro-abortionists contemplate women anywhere being denied their rights. Kind of a "House Divided" deal. That may well be true, but the example of sodomy laws, cosanguinity, civil unions, euthanasia, etc., would seem to indicate that there is at least some room for tolerance of differing moral standards from state to state and region to region.
oj - At first that's what I thought he meant too, but then the other interpretation occurred to me and I thought I'd cover that one too. Just John did a good job on the first interpretation.
Posted by: pj at January 21, 2003 4:49 AMOJ and PJ: I don't know how long it would stand that way. Issues of life and death (the death penalty curiously exempted) tend to boil over in time.
Kyle: My problems with Roe
(and Casey
, and...) are two-fold: First, I have no problem calling abortion murder. (Short: I took high school biology and I don't carry a Soul-O-Meter to tell when the fetus gets one, so I presume it's always there.) State-sanctioned murder is evil. Period. Second, from a legal perspective, declaration of law by judicial fiat, especially when it crosses the barrier between the Federal and State governments, and especially when there's no explicit provision for that in the Constitution, unnerves me. It is, as Nino Scalia pointed out, not unlike a fuhrer
(small case) calling the Volk
to order, it rings too much as a command from on high -- and that, surely, is not contemplated by our Constitution.
Christopher - on the legal point - agreed. Not everyone will agree on the justness of abortion, but everyone should agree that Roe v. Wade was wrongly decided.
Posted by: pj at January 21, 2003 9:10 AMInteresting comments.
For the record, I am pro-choice, essentially because I do not believe the fetus possesses the necessary characteristics for having rights. (At least during the first trimester -- I grow more ambivalent as pregnancy progresses.) My views on Roe v. Wade are divided. I think it drew lines in places that are essentially correct, but the underlying legal reasoning was utterly specious. As such I find myself in the odd position of wanting to defend Roe's conclusions while condemning the arguments the court used to reach those conclusions.
With respect to my earlier point, my claim was the one OJ identified. If abortion is murder, then a government that supports it is engaged in state-sanctioned murder. Abortion clinics would have roughly the same moral standing as death camps. If the fact that Saddam's government attacks and kills its own citizens is grounds for the United States to invade, why wouldn't the hypothetical Blue America's government attacking its own (unborn) citizens provide similar grounds for invasion and regime change? Etc.
It may be that the Jacksonian tendency to leave the neighbors alone (out of sight, out of mind) would have a pragmatic mollifying effect. But separating the combatants doesn't resolve the underlying moral conflict.
The Economist had a 'special report' about 'Abortion in
America' this week called 'The war that never ends' [1]
One of the points it made was an interesting one because it was new
to me. This drew attention to the fact that the law, as it stands, was
a court decision, legal not legislative. A legal decision, impinging
on yet another controversial stretching of a constititional 'right',
is an obviously unsatisfactory state of affairs. This has also
resulted in the valid criticisms made regarding the lack of a
democratic voice in the decision. To top it all, a legal decision, on
majority, by an appointed court that holds out the possibility of
reversal in the future. So, the 'war that never ends'.
This is why I consider your commentary here much more valid and
persuasive. I am 'pro' abortion but very aware of the sensitivity of
this issue, and the moral arguments. I also wrestle with my
conscience. In the end though, on questions such as this, the
'morality' needs to flow from below and not be imposed by a court.
[1] 'premium' content unfortunately but I can recommend buying the
magazine anyway.
Kyle - These 'death camps' exist now. You could equally well argue that those who believe abortion is murder would rescue the babies by attacking the death camps and killing abortion doctors. Yet, we have 100 million pro-lifers and only one or two assassins of abortion doctors. Why?
The answer is the same as the answer to your question. Americans, especially conservatives, do not lightly take the law into their own hands, but try to work through the political system. Pro-lifers would continue to do that on a state-by-state basis, just as they are now doing it at the national level.