WASHINGTON -- A Supreme Court vacancy may soon ignite a controversy involving two entangled issues -- abortion, and the role of courts in this constitutional democracy. Herewith a statement the president might usefully make sometime, somewhere, to disentangle the issues:
``Because I think it is improper to ask how a prospective judicial nominee would vote on a specific question, I shall not know how my nominees would rule in the event -- an unlikely event -- that the court revisits the constitutional foundation of abortion rights established by Roe v. Wade in 1973. However, I will seek judicial nominees disinclined to concoct spurious constitutional mandates for their policy preferences, as I believe the justices did in Roe. On the other hand, the orderly development of constitutional law requires that justices be generally disposed to respect precedents, even dubious ones, if they have been repeatedly reaffirmed for decades.
``I believe abortion is wrong, but also that states should have, as they did until Roe, the power to set abortion policy. If states come to conclusions different than mine, so be it. But remember: Were Roe overturned, that would not make abortion illegal; it would merely re-empower states to regulate the practice. And restoring the legal conditions of 1973 would not restore the social context of 1973. Given public opinion today, when abortion is one of the most common surgical procedures, it is unlikely that any state would seriously impede first trimester abortions, which are 89 percent of all abortions.
``Even many persons who strongly favor abortion rights believe those rights should have been established by legislation rather than litigation. They believe, as I do, that Roe, which discovered a right to abortion in the emanations of penumbras -- or was it penumbras of emanations? -- of other rights, was judicial overreaching, indistinguishable from legislating.
``Notice the language of 'trimesters.' How is that demarcation grounded in the text, structure or previous construings of the Constitution? Ask yourself: What would constitutional law pertaining to abortion be if the number of months in the gestation of an infant were a prime number -- say, seven or eleven? That the court spun different degrees of abortion rights from the fact that nine is divisible by three reveals that whatever the court was doing was not constitutional reasoning.
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