Legalizing abortion by judicial fiat (Roe v. Wade) instead of by democratic means has its price. One is that the issue remains socially unsettled. People take to the streets when they have been deprived of resort to legislative action.
The other effect is to render the very debate hopelessly muddled. Instead of discussing what a decent society owes women and what it owes soon-to-be-born infants, and trying to balance the two by politically hammering out regulations that a broad national consensus can support, we debate the constitutional niceties of a 35-year-old appallingly crafted Supreme Court decision.
Just how tangled the issue gets is illustrated by the current brouhaha over Rudy Giuliani's abortion response in the first Republican presidential debate. Spokesmen for the other candidates have gleefully seized upon what they deem to be Giuliani's gaffe -- not only defying Republican orthodoxy but appearing to want to have it every which way.
On repealing Roe v. Wade:
Giuliani: It would be OK to repeal. It would be also (OK) if a strict constructionist judge viewed it as precedent and I think a judge has to make that decision.
Moderator: Would it be OK if they didn't repeal it?
Giuliani: I think the court has to make that decision and then the country can deal with it. ... states can make their own decisions.
Giuliani's response has been almost universally characterized as a blundering two-way pander. I think not. I've actually heard Giuliani elaborate his position on abortion. His debate answer is an overly concise version of it, which makes it so open to ridicule.
Democrats are pro-choice and have an abortion litmus test for judges they would nominate to the Supreme Court. Giuliani is pro-choice but has no such litmus test. The key phrase in his answer is ``strict constructionist judge.'' On judicial issues in general he believes in ``strict constructionism,'' the common conservative view that we don't want judges citing penumbral emanations and other constitutional vapors to justify inventing new rights they fancy the country needs.
However, one strict constructionist might look at Roe v. Wade as the constitutional travesty it is and decide to repeal it. Another strict constructionist judge could, with equal conviction, decide that after 35 years the habits and mores shaped by Roe v. Wade are so engrained in society that it should not be overturned.
Charles Krauthammer is a 1987 Pulitzer Prize winner, 1984 National Magazine Award winner, and a columnist for The Washington Post since 1985.
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