November 7, 2005

LIKE TODAY, ONLY MORE SO (via Tom Corcoran):

Abortion and the Law: What would a world without Roe look like? (Opinion Journal November 5, 2005)

The word abortion appears nowhere in the U.S. Constitution. Yet less than a week into Samuel Alito's nomination to the Supreme Court, abortion is already emerging as the flashpoint of the confirmation debate. It is an apt moment to consider how we got to where this single issue so dominates judicial politics.

The answer is Roe v. Wade, the Court's 7-2 decision that, in one fell judicial swoop, took this deeply divisive social issue out of the hands of voters and their elected legislators. The year was 1973. The consequences have distorted American law and politics ever since.

Go back to late 1960s and early 1970s, before Roe became the most controversial Court decision since Plessy v. Ferguson in 1896. Numerous state legislatures had relaxed their hitherto absolute bans on abortion, making it easier for a woman whose health was endangered to obtain one. The burgeoning women's movement had made legalization one of its primary goals.

Attitudes toward abortion were shifting and Americans were engaged in serious public debate, amending state laws to fit new community norms. Sure, New York's law was more liberal than Texas', but that's the way our federalist system of government is supposed to work. And a Texan who wanted an abortion could--with the help of charity if she needed it--go across state lines to obtain one.

Enter the Supreme Court.

The biggest political effect of overturning Roe would likely just be to accelerate the Europeanization and corresponding social decline of the Blue States, while the Red States would, for the most part, get redder as the issue was returned to the moral sphere from the merely legal.

Posted by Orrin Judd at November 7, 2005 9:26 AM

I'm not convinced that abortion was a big factor in the Democrats' decline since the 1970s. Most people really do vote their pocketbooks, and more and more middle-class Americans have decided their pocketbooks are safer with tax-cutting Republicans instead of tax-raising Democrats.

OTOH, Roe v Wade has forced Democrats into the extreme position of defending every abortion everywhere. To parody the pro-choice Monty Python song:

Every abortion is beautiful,
Every abortion is great.
If an abortion is decided against,
Gaia gets quite irate.

Republicans have had the easier time. They can argue for restrictions - partial birth abortion bans, notification requirements - that wouldn't prevent most abortions.

If Roe v Wade goes, the situation reverses. Which is why I think most GOP strategists - though they'll never admit this - don't want the decision overturned.

Posted by: Casey Abell at November 7, 2005 11:24 AM

Casey: The party ain't run by the realists anymore...

Posted by: b at November 7, 2005 11:30 AM

Um, which party? The record since 1980 would argue that the Dems have been more out of touch with reality. For the most part, this just indicates the Repubs have been more persuasive on those boring old pocketbook issues - taxes, unemployment, inflation - that don't get people all excited but do decide elections.

But the Repubs have also been much more realistic on abortion. Sure, some zealots want an all-out ban. But the mainstream GOP has been careful to push for only rather minor restrictions that poll well with voters.

Meanwhile, Roe v Wade has locked the Dems into the hapless (and politically unrealistic) position of defending every abortion up until the umbilical cord is cut. As I said, I think the Dems' image as hell-to-leather tax-hikers has hurt them far more than the abortion issue. But their extreme position on abortion hasn't helped.

Posted by: Casey Abell at November 7, 2005 12:08 PM

Casey: Realists never ran the Democratic Party. The GHWB & Brent Scowcroft GOP was the party of realism. (It's got nothing to do with being in touch with reality...) It also was the minority party.

You're making the "What's the matter with Kansas?" argument, which is flawed because for a governing majority of Americans pocketbook issues come after morality issues.

Posted by: b at November 7, 2005 12:25 PM

Couldn't disagree more about pocketbook issues coming after anything. The reason George Bush won in 2004 was a single-digit misery index.

Not that his win was so surprising. Every incumbent president since World War II who ran for reelection with a single-digit misery index won. The two latest winners - Bush and Clinton - held diametrically opposed views on abortion and other "morality" issues. Ask Monica.

Of the five presidents who ran for reelection with a double-digit misery index, three lost. Truman got by thanks to a complacent opponent, and Reagan won because his misery index looked so good compared to Carter's.

People vote their pocketbooks. So often history confuses us. She's speaking pretty clearly here.

Posted by: Casey Abell at November 7, 2005 1:07 PM

Casey: So what is the matter with Kansas, then?

Your statement that "Bush and Clinton - held diametrically opposed views on abortion and other 'morality' issues" is just silly. A fundamental plank of Clinton's '96 campaign was "Family Values", which was recognized as being pretty brazen even then. Bush's statements about abortion don't actually conflict at all with Clinton's "safe, legal, & rare" rhetoric. And when it came to public expressions of religion, Clinton leaves Bush in the dust.

Posted by: b at November 7, 2005 1:17 PM

Sorry, but Clinton vetoed a patial-birth abortion ban, and Bush signed one. Bush is thoroughly pro-life, Clinton is just as thoroughly pro-choice. In fact, Clinton's pro-choice position was one he clung to tenaciously even when he shifted to the right after the 1994 debacle. The opposition between the Clinton and Bush on abortion couldn't be more stark.

But they both got reelected thanks to the economy. Did I mention that people vote their pocketbooks?

Posted by: Casey Abell at November 7, 2005 3:09 PM

People vote morality first, and the most obvious proof is that you can't run for significant political office without at least claiming that religion is very important in your life. Doesn't even matter so much what religion or whether you actually practice anything you claim to believe in, but you have to clear that first hurdle. The Dems are now the minority party because they lost the ability to convince a majority of voters that they pass that test. Even the peanut farmer recognizes that.

Posted by: b at November 7, 2005 3:42 PM


There's no point in arguing for restrictions on constitutional rights. The left wants this issue decided by a court, the 'right to life' wing of the Republican party would like it decided by the voters at the state level or through an amendment. The constitution is silent on the subject regardless of Harry Blackmun's opinion.

Posted by: Tom C., Stamford,Ct. at November 7, 2005 3:44 PM

The idea that the pro-life majority supports an outright ban on abortion is simply not true. It is no more than a scare-tactic promulgated by the culture of death.

The law is going to settle down on allowing the procedure for things like documented rape and incest and for physical medical emergencies.

Collateral issues, such as notification and counselling are going to be left to the states, and those who say the procedure should be safe, legal and common as the birth control of last resort are going to have to make their legislative case. The pro-life side has the initiative and can frame the debate.

All this talk about abortion being an all-or-nothing proposition is as misplaced as considering U.S. troops in Iraq as all-or-nothing.

Posted by: Lou Gots at November 7, 2005 4:49 PM