WASHINGTON -- Almost 35 years have passed since the Supreme Court decided to end America's argument about abortion. Because of the court's supposedly therapeutic intervention in the nation's supposedly inadequate democratic debate about that subject, the issue still generates an irritable irrationality that was largely absent prior to 1973.
Then, America was operating under a regime of moral federalism. In the absence of ukases from the federal judiciary that generate continentwide eruptions of tension and anger, many states were re-examining their abortion regulations, and many were relaxing them. To sample today's confusions, consider California.
There the electorate so strongly supports abortion rights that no right-to-life candidate for governor, U.S. senator or president has won in California since 1988. This is so in spite of the fact that a governor, U.S. senator or president has only slight relevance to the status of Californians' abortion rights.
Nevertheless, it is said that if the Republican Party wants to be competitive in California in presidential politics, it must nominate a pro-choice candidate, of which there is only one -- Rudy Giuliani. This is almost certainly true. It certainly is irrational because pro-choice Californians have next to nothing to fear -- just as pro-life Californians have next to nothing to hope for -- from a right-to-life president. The practical consequences of such a president concerning abortion would not differ significantly from Giuliani's consequences. Here is why.
Abortion policy is almost entirely in the custody of the U.S. Supreme Court, and will remain so unless or until the court decides to restore moral federalism regarding the issue. On Jan. 20, 2009, when the next president is inaugurated, the court will have one justice in his late 60s (David Souter, 69), four justices in their 70s (Steven Breyer, 70; Anthony Kennedy and Antonin Scalia, 72; Ruth Bader Ginsburg, 75) and one 88-year-old, John Paul Stevens. The two who will be oldest, Ginsburg and Stevens, are strong supporters of a constitutional right to abortion. The three who will be youngest -- John Roberts, 53; Samuel Alito, 58; Clarence Thomas, 60 -- seem unsympathetic to the court's abortion jurisprudence.
The next president probably will have an opportunity to significantly shape the court, which has frequently divided 5-4 on important questions, including abortion issues. But regarding abortion, the reasonable response to this fact from residents of many, perhaps most, states, and especially from Californians, should be a shrug of a question -- "So what?"