Judging Roe

Posted: Jan 02, 2005 12:00 AM

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.

     ``Some legislators, such as Sen. Kay Bailey Hutchison, a Texas Republican, are pro-choice but have voting records judged almost perfect by the National Right to Life Committee. This is because regarding the only policy choices possible in the context of Roe -- about, for example, late-term abortions, parental notification, public funding -- people can be pro-choice with nuances. That is one reason why in 2004 one-third of pro-choice voters supported me.

     ``I rarely recommend reading The American Prospect, a liberal monthly that considers me one of nature's blunders, but do read Deputy Editor Sarah Blustain's essay in the December issue. She, like increasing numbers of thoughtful supporters of abortion rights, finds the way some pro-choice people talk about abortion -- entirely in a defiant and even celebratory language of rights -- to be insufficiently nuanced. 'After all,' she says, 'abortion is a right that ends in sorrow, not celebration. It's not like women's suffrage or the equal access to public accommodations, rights whose outcome is emotionally unambiguous.'

     ``Blustain believes that to her generation -- she is in her 30s -- making the choice of a legal abortion `is no longer something to celebrate. It is a decision made in crisis, and it is never one made happily.' Who is not thankful that the number of abortions in America declined by 300,000 in the 1990s? But who can be complacent about the continuing termination of lives in those numbers?

     ``That a life begins at conception is a biological fact, not a theological tenet. The agonizing question for thoughtful people concerns when, if ever, abortion is a victimless act. The increasing sophistication of prenatal medicine, and modern sonograms revealing the formation of eyes and a beating heart six weeks into the pregnancy, have a powerfully felt pertinence to the sorrow that Blustain rightly says attends abortion.

     ``But when, with Roe, the court overturned all state abortion laws -- 50 communities' judgments about this -- the court truncated democratic deliberations that, in the five years prior to Roe, had liberalized abortion laws in 16 states with 41 percent of the population. If the case for abortion rights is as strong as its proponents think, they should welcome the 50 debates. That -- the vitality and integrity of American democracy and federalism, not abortion -- should be the subject of our deliberations about judicial nominees.''