The high court and its crime

Posted: Oct 11, 2005 12:05 AM

Again it gets down to abortion. It always gets down to abortion. The civil war raging among conservatives over Harriet Miers is no exception.

 What the war is about, chiefly, is whether Miss Miers, if confirmed by the Senate to the U.S. Supreme Court, would vote to strike down Roe v. Wade. We don't know -- how could we? But we can and do speculate.

 Roe, Roe rows our boat, gratingly down the stream. It has done so since 1973, when the high court intervened tellingly on behalf of the feminist argument that "privacy" trumps pregnancy as to constitutional consideration.

 An unborn baby, according to the court, enjoyed no rightful legal presumption as to its right to be born. In Roe, the social passions of the 1960s -- the rejection of authority, the exaltation of personal autonomy -- flowed and mixed together and inundated the landscape.

 Roe came to symbolize everything Americans either loved or hated about the post-Eisenhower period. Some views on the matter -- not that many, in truth -- have changed over time. Talk about it as we may, and we never quit talking about it, the question we come down to, part theological, part cultural, is the question of control: Who's in charge here, huh?

 "I'm in charge here," reply harder-edged advocates of women's rights. "Right on!" large segments of the populace chirp sympathetically: We ourselves wouldn't have abortions; but I guess that's up to you, honey.

 By contrast, opponents of abortion insist no one can be that much in charge, making life and death decisions in the absence of finely attuned moral considerations. A religious opponent will reference God's will as sovereign in the matter. Some of Harriet Miers' sharpest critics are evangelical Christians who are fearful that she might at best try to balance these competing claims to sovereignty, rather than come down unambiguously on their, and the Almighty's, side.

 There's no way to resolve such concerns, pending a test case in which the issue is, starkly, affirm or slap down Roe. But the very ambiguity of these times and controversies goes far toward showing us the court's crime in Roe. Crime, yes -- the crime of setting Americans against each other and of unhealthily diverting their energies and passions.

 This is what you get into when you call on courts to short-circuit the deliberative processes provided for by democracy.

 The sheer rage that Roe excites is due only in part -- though certainly the larger part -- to its withdrawal of protection from unborn life. The other part of the puzzle is the court's dapper indifference to the other side of the case -- the pro-life side. Why? The court couldn't care less what mere citizens think about matters fundamental to the way a culture and a nation define themselves. The court performs that heavy lifting for us. This thing isn't up to the people -- it's up to the judges, and the judges have judged. Let it go. Quit yammering.

 The psychological improbability of a united America accepting such a decision is something that clearly never occurred to the Roe majority. "What's the matter with those nuts out there?" is what subsequent courts have asked, if not in so many words, as they went merrily along, affirming the original holding in Roe. The judges must wonder, from the repetitiousness of challenges to Roe, whether we understand, as they do, that privacy trumps pregnancy.

 We must not. At any rate, those with an older and different view of control issues, who fail to equate legal defeat with moral defeat, strive accordingly to reverse an outcome they see as morally outrageous.

 No wonder this thing never goes away. No wonder Americans of all political dispositions squint into the tea leaves and ponder what Harriet Miers might do concerning Roe: leave it alone or help kick it down the stairs.

 One thing is for sure: We have a national mess here, one that neither George W. Bush nor Harriet Miers, nor even Patrick Leahy and Arlen Specter commenced. And on it goes … and goes.

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