Open Hearts, Open Minds, Closed Policy

Jacob Sullum
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Posted: May 20, 2009 12:01 AM
Open Hearts, Open Minds, Closed Policy

            During the commencement speech in which President Obama urged greater civility in the abortion debate, he was interrupted by cries of “baby killer,” “abortion is murder,” “stop killing our children,” and “you have blood on your hands.” The passion displayed by the protesters at the University of Notre Dame on Sunday suggests that calling for “open hearts, open minds, [and] fair-minded words” will get you only so far on this subject.

            To his credit, Obama acknowledged as much. “No matter how much we may want to fudge it,” he said, “the fact is that at some level the views of the two camps are irreconcilable.” But he did not acknowledge the extent to which he and other supporters of abortion rights have contributed to the rancor by federalizing an issue that should be left to the states.

            For the last 36 years, on the strength of a hazily reasoned Supreme Court ruling, federal judges have been micromanaging state abortion regulations, deciding which are justified and which go too far. Since the U.S. Constitution does not address abortion one way or another, these determinations seem arbitrary, driven by individual policy preferences instead of intellectually honest legal interpretation.

This usurpation explains why we do not think it odd for presidents (or presidential candidates) to make pronouncements about an issue that is beyond the powers granted to the federal government by the Constitution. For his part, Obama surely plans to nominate a replacement for retiring Supreme Court Justice David Souter who will provide a reliable fifth vote for upholding Roe v. Wade. His supporters would be outraged if he didn’t. Anti-abortion activists will be outraged when he does.

            There’s no getting around the fact that if you truly believe abortion is murder, you will not be satisfied until it is banned completely (perhaps with a self-defense exception in cases where the mother’s life is threatened by the pregnancy). Nor will you be much moved by calls for less stridency and more civility, except perhaps for tactical reasons. At the same time, it’s clear that a major reason for the anger of abortion opponents is the sense that a vitally important area of public policy has been improperly transferred from their democratically elected state legislators to a cabal of federal judges appointed for life.     

Furthermore, because abortion policy is set at the national level now, anti-abortion activists have responded with blatantly unconstitutional measures of their own, such as the Partial Birth Abortion Ban Act. In 2007 the Supreme Court upheld this law, which prohibits a particular late-term abortion method, as consistent with Roe v. Wade, when it should have been overturned on the grounds that it clearly exceeds the authority to “regulate commerce…among the several States,” the constitutional power on which it was ludicrously based.

            The federal ban on “partial birth” abortion, together with similar state laws, suggests the pro-life side may be winning, an impression reinforced by Gallup Poll results released last week. For the first time since the organization began asking the question in 1995, the percentage of Americans who identified themselves as “pro-life” outnumbered those who identified themselves as “pro-choice.”

Yet only a fifth or so said abortion should be banned in all cases, essentially the same as the share who said it should always be allowed. The real action remains in the middle, with the 53 percent who said abortion should be legal in some circumstances. Exactly what circumstances those are is a question that should be worked out at the state level, and no doubt the answer would be different in Utah than it would be in Massachusetts.

The results of this process would not fully satisfy anyone, but allowing it to happen would go a long way toward reducing the acrimony associated with this issue. When abortion laws throughout the country hinge on a single judicial nominee, it’s not a situation conducive to “open hearts” or “fair-minded words.”