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| Roe, Not Giuliani, Is The Real Abortion Muddle |
| 2007-05-11 |
| By Charles Krauthammer Legalizing abortion by judicial fiat (Roe v. Wade) instead of by democratic means has its price. One is that the issue remains socially unsettled. People take to the streets when they have been deprived of resort to legislative action. The other effect is to render the very debate hopelessly muddled. Instead of discussing what a decent society owes women and what it owes soon-to-be-born infants, and trying to balance the two by politically hammering out regulations that a broad national consensus can support, we debate the constitutional niceties of a 35-year-old appallingly crafted Supreme Court decision. Just how tangled the issue gets is illustrated by the current brouhaha over Rudy Giuliani's abortion response in the first Republican presidential debate. Spokesmen for the other candidates have gleefully seized upon what they deem to be Giuliani's gaffe -- not only defying Republican orthodoxy but appearing to want to have it every which way. On repealing Roe v. Wade: Giuliani: It would be OK to repeal. It would be also (OK) if a strict constructionist judge viewed it as precedent and I think a judge has to make that decision. Moderator: Would it be OK if they didn't repeal it? Giuliani: I think the court has to make that decision and then the country can deal with it. ... states can make their own decisions. Giuliani's response has been almost universally characterized as a blundering two-way pander. I think not. I've actually heard Giuliani elaborate his position on abortion. His debate answer is an overly concise version of it, which makes it so open to ridicule. Democrats are pro-choice and have an abortion litmus test for judges they would nominate to the Supreme Court. Giuliani is pro-choice but has no such litmus test. The key phrase in his answer is "strict constructionist judge.'' On judicial issues in general he believes in "strict constructionism,'' the common conservative view that we don't want judges citing penumbral emanations and other constitutional vapors to justify inventing new rights they fancy the country needs. However, one strict constructionist might look at Roe v. Wade as the constitutional travesty it is and decide to repeal it. Another strict constructionist judge could, with equal conviction, decide that after 35 years the habits and mores shaped by Roe v. Wade are so engrained in society that it should not be overturned. And there is precedent for strict constructionists accepting even bad constitutional rulings after the passage of time. The most famous recent example is Chief Justice William Rehnquist for years opposing the original 1966 Miranda ruling as "legislating from the bench," but upholding it in 2000 on the grounds that it had become so engrained in American life that its precedental authority trumped its bastard constitutional origins. (He used different words.) In a country with a rational debate about abortion, Giuliani would simply have been asked how he would regulate (up to and including banning) abortion. That's not a relevant question here because neither presidents nor legislatures nor referendums decide this. Judges do. All presidents do is appoint judges. Giuliani's answer on how to go about picking such judges is perfectly reasonable. It appears to be a dodge about the abortion issue itself simply because -- thanks to Roe -- every such debate becomes tangled with otherwise irrelevant issues of constitutional doctrine and stare decisis. To give you an idea of how muddied the abortion debate has become thanks to this gratuitous constitutional overlay, consider the recent Supreme Court decision upholding the ban on partial-birth abortion. It has been misread by partisans on both sides. Pro-choice advocates denounced it as the beginning of a gradual cutting back on abortion rights. Pro-lifers celebrated it for precisely that reason. It is nothing of the kind. The only reason the court upheld the ban is because an alternative (far more commonly used, in fact) to this mid-to-late-term procedure is readily available. Hence no "undue burden'' on the woman. Hence it respects the confines of existing abortion jurisprudence. Roe (and its successors) lives. I hope for the day when Roe is overturned, not because I want to see abortion criminalized -- I once voted in a Maryland referendum to keep abortion legal if Roe is ever repealed -- but to sweep away this ridiculous muddle. Perhaps Giuliani should have said something like that rather than leaving the precedent question up to judges. Abortion is already so contaminated with legalisms, why not turn the issue into one of simple democracy? Let the people decide. Let them work it out the way everything else in this country is worked out -- by political argument and legislative accommodation. |
| Posted by:ryuge |
| #6 When male lions take over a pride from a rival male, they will kill any suckling cubs in that pride, in order for the newly "owned" females to come into heat. Sometimes these males will eat the cubs they have "murdered." The females who thus lose their cubs don't seem to mind much once they come into heat. The lives of animals are a very poor guide for humans. |
| Posted by: Anguper Hupomosing9418 2007-05-11 23:27 |
| #5 "To my knowledge man is the the only earthly taxonomic group which utilizes the population control measure of reaching inside the womb in order to terminate the natural continuation of the species." Lions don't have to worry about finding a way to raise young alone for years if abandoned by the father. They don't have to worry about paying the bills while raising their young. They don't have to worry about leaving their young alone while they go out to hunt for food-they do it, even when sometimes those young die BECAUSE they are left alone. Animals, without the intervention of humans, are at the mercy of their environments and their biology. They die from ugly and painful diseases and some animals are slain for food in horrific ways every day. Humans are not the same as other creatures in a multitude of ways, nor should we want to be. Humans can't have absoulate control over our environments and biology, but to the extent that we have SOME control over environment and biology, I am not ready to model my life after animals, especially in terms of procreation. I am an animal lover, but imitation is not the way to go. |
| Posted by: Jules 2007-05-11 21:42 |
| #4 To my knowledge man is the the only earthly taxonomic group which utilizes the population control measure of reaching inside the womb in order to terminate the natural continuation of the species. Rabbits and such reabsorb their fetuses when conditions are unsuited for having offspring, eg severe overcrowding, neatly avoiding the abortion issue. Most other animals either kill unwanted offspring or simply abandon them. Before abortion methods were developed, humans either exposed unwanted babies where carnivores could find them (the Greeks were fond of nearby hilltops) or sacrificed them to the gods, thus seeing a double benefit from the action. In Communist Romania and Mainland China, unwanted babies are given up for adoption, where too many of them end up more or less as psychopaths. |
| Posted by: trailing wife 2007-05-11 16:37 |
| #3 Legalizing abortion by judicial fiat (Roe v. Wade) instead of by democratic means has its price. That's the point the 'ends justify the means' crowd try to desperately ignore. We went through a rough challenging and emotional stretch in the early 1960s as a country over the civil rights movement. The Civil Rights Act and Voting Rights Act were finally passed, but certainly not unanimously and with aspects that were compromises. However, no one today seriously considers repealing the legislation. That's because it was passed through the democratic branches [those subject to the consent of governed] of government. The price we pay today in filling SCOTUS seats is largely the consequences of the judicial dictate of Roe. For that which issues one day and revoke the next. How many nomination fights have been so pointed and centered around any other issue? How much political capital, resources, and emotion are spent with every nomination just because of one decision? Any thing less than Dred Scott? The fact that the issue is still volatile today clearly shows that the 'consent of the governed' was never a consideration and that the justices believed that law can be imposed without such a consent. English king or SCOTUS Justice, Jefferson's words of the Declaration of Independence are as true today as they were on July 4, 1776. |
| Posted by: Procopius2k 2007-05-11 10:03 |
| #2 To my knowledge man is the the only earthly taxonomic group which utilizes the population control measure of reaching inside the womb in order to terminate the natural continuation of the species. Our society has advanced significantly in our quest for the amelioration of the "perfect type" (ie, societal and personal convenience) from the German-federally funded skeletal studies, feature measurement, twin studies of Mengele. We should all be very proud of our.... "choice." |
| Posted by: Besoeker 2007-05-11 09:34 |
| #1 ...I have always been a little confused by something, and let me state up front I'm NOT looking to start a flame war. My understanding has always been that a good chunk of Roe v. Wade was based on false information provided in the original case by 'Jane Roe'. If that is the case, why wouldn't that invalidate the original SCOTUS decision? Let me stresss again that I'm not trying to incite a war here; I distinctly remember watching Norma McCorvey ('Jane Roe')state that she was not truthful regarding the circumstances of her pregnancy. Mike |
| Posted by: Mike Kozlowski 2007-05-11 08:27 |