February 20, 2003

GIVE THE PEOPLE A CHOICE (via Reductio ad Absurdum)

Worst Choice: Why We'd be Better Off Without Roe (Jeffrey Rosen, 02.19.03, New Republic)
Rather than hanging by a five-to-four thread, the core principle of Roe is supported by six justices. And, even in the unlikely event that Roe were overturned, the core right it protects--the right to choose abortion early in pregnancy--isn't likely to be threatened on a broad scale. For the past 30 years, national polls have revealed a consistent and moderate consensus on abortion: Majorities strongly oppose bans on early-term abortions and strongly support restrictions on late-term abortions. If Roe were overturned, the relative political weakness of the extreme pro-life position would be exposed, and the Republican Party would be torn apart at the seams because many Republicans oppose early-term bans and would desert the party in droves. "The last thing in the world the White House would want is that Roe v. Wade is overturned," says a prominent Republican congressional aide. "The reason being is that it would energize the nation's pro-choice constituency, ... and it would cause a huge fissure in the Republican Party, which has been generally harmonious over the issue because of the belief that the pro-life position will never truly be tested." At the same time, if Roe were overturned, the expanded and moderate Democratic majority would be free to distance itself from extremists in the pro-choice movement who persist in fighting restrictions on late-term abortions, which most Americans embrace. In short, 30 years later, it seems increasingly clear that this pro-choice magazine was correct in 1973 when it criticized Roe on constitutional grounds. Its overturning would be the best thing that could happen to the federal judiciary, the pro-choice movement, and the moderate majority of the American people. [...]

In the 30 years since the decision, public opinion about abortion has remained remarkably stable. As Everett Ladd and Karlyn Bowman of the American Enterprise Institute have noted, national polls from 1975 to the present suggest that public opinion on abortion for the past three decades has consistently included extremes on both sides that favor either no restrictions or total bans--each of which command about 30 and 20 percent support, respectively--and a vast majority in the middle that opposes both early-term bans and late-term abortions. Americans have reached a moderate consensus: In a CNN/Gallup/USA Today poll last month, 66 percent said abortion should be legal during the first three months of pregnancy; by the second trimester, when the fetus becomes viable, only 25 percent said abortion should be legal; and, by the third trimester, when so-called partial-birth abortions would be performed, only 10 percent say abortion should be legal. These numbers, too, have remained entirely consistent during the three decades since Roe was decided.

Despite these national trends, if Roe were overturned, it's true that some states would try to regulate early-term abortions. The precise number is hard to estimate. [...]

[E]ven if a handful of state legislatures did pass restrictions on first-term abortions, the political consequences would energize the pro-choice movement and hurt the Republican Party far more than it now benefits from pandering to the pro-life extremists. "You have a sizable number of Republican women and men who are in the vast middle group that tilt more toward the choice side," says Norman Ornstein of the American Enterprise Institute. If Roe were overturned, "it would help to redefine the Republican Party as a pro-life party. If anything could lead to realignment, I imagine this could do it. We're talking about a country at parity, and, if we see a shift of two or three or four percent, it could make a significant difference." [...]

The fact that we are about to fight another Supreme Court nomination battle by flyspecking the nominees' views on Roe points to the real costs of the decision today. Thirty years after Roe, the finest constitutional minds in the country still have not been able to produce a constitutional justification for striking down restrictions on early-term abortions that is substantially more convincing than Justice Harry Blackmun's famously artless opinion itself. As a result, the pro-choice majority asks nominees to swear allegiance to the decision without being able to identify an intelligible principle to support it. And the pro-life minority can criticize the legal weakness of the decision without having to acknowledge its political weakness in the country as a whole.

Thirty years ago, opposing Roe on constitutional grounds, Alexander Bickel wrote for the editors of this pro-choice magazine, "[I]t may take some time before the realization comes that this will not do." After three decades, it has become more obvious than ever that Bickel was correct and that the costs of retaining Roe outweigh any benefits. For better or for worse, Roe will not be overturned any time soon. But, if it were, the Democrats, the federal judiciary, and the moderate majority of American people could breathe a sigh of relief.

For our money the most hilarious theory of 2002--given official credence by Timesman Rick Berke--was that George W. Bush and Karl Rove secretly hoped the Democrats would keep control of the Senate so that the Administration wouldn't have to pass any conservative legislation and could instead run against the do-nothing Democrats, while triangulation between the Republican House and the Democrat Senate would allow him to compromise and reach the moderate ends the President truly believes in. This is of a piece with the speculation in 2000 that George Bush didn't really want tax cuts, in 2001 that he was a closet protectionist, etc., etc., etc.... There may be no politician in modern memory who has had greater trouble getting people to believe what he says, at least none whose actions have so consistently matched his words but has still been unable to get people to believe him. Thus, before the State of the Union you got pundit pabulum predicting that Mr. Bush would not propose anything too extraordinary. Instead he came out with massive new tax cuts, a privatization plan for Medicare, a radical restructuring of retirement savings accounts, etc. Similarly, using his executive power he's effecting a conservative takeover of the judiciary, pushing his Faith-Based Initiative, removing environmental and business regulations, and so on and so forth.

But, comes now Jeffrey Rosen to tell us that George W. Bush secretly supports Roe v. Wade, even as Mr. Rosen himself acknowledges that it is an unprincipled, anti-Constitutional, and socially costly decision. But even if we assume that Mr. Bush doesn't sincerely care about the moral issue involved, and that he's unbothered by the judicial usurpation and misuse of power involved, it's difficult to follow Mr. Rosen's reasoning here. We currently have a legal regime where abortion is available on demand, even though large majorities of Americans support a variety of restrictions. Overturning Roe would, as Mr. Rosen says, probably only lead to complete bans in a very few states and complete permissiveness in a few, with the remainder allowing abortion but only in certain circumstances. So, what we'd have in the post-Roe political world is the GOP securing a series of victories that majorities support while Democrats oppose them at every step of the way. How exactly does that hurt Republicans?

Meanwhile, if we return to the moral, Constitutional, and social issues--it seems self-evident that bringing abortion law back into line with democratic legal structures and opinion and inhibiting the ease of getting an abortion all serves conservative purposes. Moreover, Mr. Rosen seems to have discounted the raw authority that the Supreme Court carries in our society. Even its most controversial rulings--Brown v. Bd. of Ed.; Miranda; Roe itself--have a tendency to be accepted by the American people. It would be all to the good for society to grapple with the idea that abortion is not a "right" and is therefore not secured by the Constitution, but a privilege and therefore granted by us as voters. Rather than being able to duck responsibility and blame the Court and Constitution, each of us will have to reckon with our own culpability in every abortion we allow. What's the downside of making us take responsibility for the moral choices of our own culture?

If Roe v. Wade is overruled, what arguments should abortion rights supporters use? those who support abortion rights must be prepared to argue, even if fetuses are accorded the legal status of persons, that women should still retain the right to choose an abortion (Alec Walen, FindLaw.com)

Posted by Orrin Judd at February 20, 2003 4:23 PM

Wait, Mr. Rosen is saying that, even though large majorities of Americans favor somewhat larger restrictions on late-term abortions than exist now, Republicans would be destroyed by a repeal of Roe v. Wade?

Can he seriously be arguing that the Democratic Party is not at least as pro-choice absolutist, at the activist and political level, as the Republican Party is pro-choice? I would think that a reasoned observer would have to admit that both parties could be torn apart after a repeal of Roe.
Surely the danger is not just to the Republicans. What if the Republicans merely propose those small, popular restrictions on late-term abortions, and Democrats are unswervingly against them? Wouldn't that hurt the Democrats?

Posted by: John Thacker at February 20, 2003 6:16 PM

Orrin, you've probably read it, but I found Christopher Caldwell's recent column in the New York Press about abortion politics to be refreshingly realistic (even cynical) and free of both liberal and conservative nostrums http://www.nypress.com/16/5/news&columns/beans.cfm
). While he makes some great observations about the distorting effects Roe vs. Wade has on Democratic Party presidential primaries and the Supreme Court, his key political points are worth repeating:

1. "Support for abortion may have slackened a bit in the last half-decade, but it remains above the threshold where it helps candidates. It is a solid winner for Democrats in national elections."

2. "..if Roe v. Wade were ever overturned, Congress would begin writing a law to relegalize abortion before the day was out."

3. "[Bush] gave evidence of the weakness of the Republican position by hiding out in the Midwest on the day of the Roe anniversary, discussing his economic stimulus package, and then phoning in a message of support for anti-abortion marchers rather than joining them on the Mall."

4. "A majority of Americans want liberal abortion laws, too, but they insist on having them fringed about with itty-bitty, conscience-salving regulations. Americans say they are against late-term abortions, but they favor, by wide margins, allowing abortion for the 'health of the mother.' A significant number of those who call themselves pro-life would even grant exceptions for the mental health of the mother, which is a third-trimester loophole you can drive a truck through."

5. "[Once Bush's partial-birth abortion ban is in place] our de facto abortion regime will be more congruent than it has ever been with the kind of global abortion law that our elected representatives would actually pass if they were forced to. At that point Democrats may find it in their own interests to force them to, in hopes that a debate over an abortion law would cleave the Republican Party into its two halves–the lifestyle libertarians and the religious moralists. It probably would do just that."

Posted by: Barton Wong at February 20, 2003 7:07 PM

Mr. Rosen has to come up with interesting, provocative ideas to maintain his income. This is a classic columnist's gambit: argue that a party will win the political war by losing battles, or lose the war by winning battles. It's counterintuitive enough to excite reader interest.

But the fact is that at least 95% of the time, parties win by winning battles, making ideological progress, demonstrating power and motivating supporters to work with them. Moreover, it's impossible to reliably identify the occasions when losing a battle might be advantageous. Sort of like the advertising adage -- "50% of my advertising budget is wasted, but I don't know which half."

If Republicans do nothing about abortion, they might see their pro-life supporters lose interest or dissipate.

Posted by: pj at February 20, 2003 7:30 PM

RE: Late term, esp partial birth abortions.

I suspect very few abortions are late term. Possibly sufficiently few so it might be possible to provide a pretty detailed picture as to the whys behind them.

Does anyone know of such an analysis?


Jeff Guinn

Posted by: Jeff Guinn at February 20, 2003 9:47 PM


It is a minute % but is almost entirely elective, rather than emergent.

Posted by: oj at February 20, 2003 10:07 PM

Yes, but what is driving these choices? Are the majority of the late-term aborted fetuses destined to be born grossly deformed? Might maternal-fetal immune systems interactions be seriously threatening the mother's life? Are any/many/most simply for the mother's convenience?

Given the small percentage, it is possible to exhaustively categorize the reasons for these abortions. Based on nothing in particular, I believe the first two reasons are the most likely. But that is based solely on my assumption that having gone that far into a pregnancy, adoption would be a far more palatable (or far less unpalatable) decision.

Anyway, I believe that before passing a blanket ban on the procedure, it would be nice to know why it is happening in the first place.


Jeff Guinn

Posted by: at February 21, 2003 7:24 AM

Jeff G - late term abortion is almost entirely an elective procedure, contrary to the "mother's health" spin always applied to it. The percentage you mention may be small. but has grown something like 400% over the last 4-5 years. I have a link somewhere, I'll try to find it and post it here.

Posted by: Jeff Brokaw at February 21, 2003 8:56 AM

Jeff G:

Here's our fullest coverage of abortion:


and here's a good impartial bit on partial-birth:


Posted by: oj at February 21, 2003 9:28 AM


Thanks for the URLs. At a gut level, I don't think the government has any business making this decision for a woman at any point. That said, I wouldn't be writing letters to my congressman if he were to vote for banning 3rd trimester abortions absent mortal threats to the mother.


Jeff Guinn

Posted by: Jeff Guinn at February 21, 2003 9:56 PM


So long as you deny the humanity of the child that's a perfectly rational theory. And so long as you're willing to accept that the Court can determine who's human and who isn't you have no problem.

Posted by: oj at February 22, 2003 12:21 AM


Uh, no, I don't deny the fetus' humanity. I am just unwilling to impose my particular belief on anyone else. The only way the anti-choice position can reach its goal is to ram its beliefs down the throats of all women who disagree, since that is the only route to the fetus.

So, ultimately, I believe this is a decision best left to individuals, their consciences, and their beliefs.



Posted by: Jeff Guinn at February 22, 2003 4:31 PM


We're willing to ram our belief that women are human down everyones. throats. That's what morality is. A small group of elite Justices suddenly decided the fetus wasn;'t a human being and proceeded to ram that down our throats, against the will of the majority. If the Court tomorrow said that Muslims weren't human, as it has in past said of blacks, would you just accept that?

Posted by: oj at February 22, 2003 6:21 PM


No. The justices didn't ram their belief down your throat. They left it up to you to decide for yourself, not someone else. Since my decision on this matter does not fundamentally affect you, why should I yield to your belief?


Jeff Guinn


Jeff Guinn

Posted by: Jeff Guinn at February 23, 2003 7:06 PM

Of course it affects me. Our culture had protected the unborn for millennia. Several states decided not to anymore, as may have been their right. Then the Court took the matter out of all our hands. You either believe in democracy or you don't but you can't square it with Roe.

Posted by: oj at February 23, 2003 8:32 PM