January 4, 2003

Still a row over Roe

By: James N. Markels

icon-james.jpgLast Wednesday marked the 30th anniversary of the Supreme Court’s
decision in Roe v. Wade–I was but a fetus at the time the opinion was
handed down–yet the rhetoric flying around today from both sides of the debate
has only gotten shriller from the passage of time.

Protests and marches are still organized,
abortion clinics picketed, and epithets traded.
Roughly 75 other countries have legalized abortion since Roe but
yet they don’t seem to suffer the endless rancor that America
has been embroiled in.Why us?

One difference, as pointed out in a
recent issue of The Economist, is that in America
the question of abortion was resolved as a constitutional question, while in
other countries the issue was left to the legislative bodies to wrangle
out.”This allowed abortion opponents
[in other countries] to vent their objections and legislators to adjust the
rules to local tastes,” the magazine observed.
“Above all, it gave legalisation the
legitimacy of majority support.”

This crucial last part is missing
from Roe.The only majority that
created the right to abortion was that of seven members on the Supreme
Court.Even worse, the jurisprudence
used by the Court effectively amounted to little more than an arbitrary
decision to create a right that simply was not derivable from the language or
intent of the Constitution.While the
result may have been something that most Americans at the time, or even today,
would support, the means of getting there gave abortion the stink of

As a result, the whole of American politics
gradually became polarized over the issue, with the Supreme Court nestled in
the center of the maelstrom.Both sides
have realized the fundamental bottom line: Whoever gets five Justices
wins.Not only has abortion become a
practical litmus test for Court appointees, it might even matter more than any
other positions a nominee might hold–especially with the split being a razor’s
edge 5-4, with Justice O’Connor being the key fifth vote
and a likely retiree soon.Considering
the innumerable issues that a Supreme Court Justice must confront, laying so
much weight on just one case is ridiculous.

The debate over abortion itself has
also changed, with the opposing sides getting ever more extreme in their
rhetoric and tactics while those in between just try to avoid
labeled baby killers or misogynists.
Any reasonable limit on abortion–such as at
viability–is portrayed by rabid pro-choicers as the
enslavement of women, while any reasonable allowance for abortion–such as in
cases of rape or incest–is execrated as genocide by the hardcore
pro-lifers.This, also, is ridiculous.

Personally, I’ve come to very few
conclusions on the question of abortion.
I used to believe that a baby only got rights at birth, but then I
realized that the only difference between a fully formed baby one minute before
birth and the same baby after birth was its location.
Should a change in environment by itself be
the big determinant for rights?That
just didn’t make sense to me.But I also
didn’t think that banning abortion altogether would accomplish much of anything
positive, either, except create a rise in illegal abortions and unwanted
children.And don’t even get me started
on the more philosophical natural-rights stuff . . .
I can chase my tail for hours on that.

But one thing that my mulling and searching taught
me was that while it was easy to figure out how the extremists on both sides
were unrealistic, most of the varied positions in the middle have respectable
rational bases to them.There’s really
no one “best” answer.And most of
America sits somewhere in that big middle between the extremes, since polls show
clear majorities in favor of some form of legalized abortion, as well as supporting
some limits on its practice and accessibility.

And that is perhaps the true
tragedy of Roe: When the Court decided for the nation a course on
abortion that we likely would have gotten to on our own in some form or
another, it removed the issue from the area of legislative debate where
moderate voices would be more numerous and placed it into an all-or-nothing
status where extremists would dominate the discourse.
Instead of focusing all our efforts on
minimizing the need for abortion through sex education, personal responsibility
and maximum access to birth control–like we should be doing–we’re still beating
the same horse that died decades ago.
Instead of the moderates hammering out some compromises and tinkering
from there, the extremists line up to threaten moral Armageddon.
In effect, Roe froze us in time and
made it impossible for America
to move on to more pressing issues.
We’ve been stunted.

This serves as a lesson about the
limits of the judiciary.The Court may
have felt it was doing the “right thing” in Roe, but they weren’t the
right people for the job.Either
Congress should have handled the abortion issue or the state legislatures
should have taken it up.Abortion was
something we, the people, needed to hash out amongst ourselves.
Until that happens, the 60th
anniversary of Roe is already shaping up to be a rerun.