Strengthening Constitutional Self-Government

No Left Turns

Roe, Abortion, and the Culture War

A couple of days ago, Gerald Seib made what has become the conventional argument about abortion in establishment circles. If only we could stop arguing about Roe v. Wade we could do something constructive:

The volume on the abortion debate, relatively low throughout this campaign year, is about to go up. Indeed, a leading abortion-rights group already is using the Palin nomination to raise money from its supporters.

And all that, in turn, means frustration for those activists on both sides of the partisan divide who would like to lower the heat in the long-running national argument on the legality of abortion. These people would like to turn instead to a calmer discussion about something on which both sides might agree: practical steps to make abortion less common.

But doesn’t that miss the degree to which Roe itself has caused the problem. By taking the right to regulate abortion away from the people, the Supreme Court has put us in a situation where we can only shout at each other, and shout about absolutes. Were we allowed to pass laws, in our states, towns, etc., then we could actually make all kinds of laws that reflected various opinions about abortion. To be sure, there would still be serious arguments. On the other hand, our political system was designed to contain precisely such arguments. By taking from the people the right to make diverse laws on a subject that is properly above the pay grade of both courts and Presidents, the Supreme Court caused, or at least exacerbated the culture war.

Thirty five years after Roe, returning power to the people would probably not undo all the damage, but it probably would ease some of the tension.

Discussions - 8 Comments

By taking the right to regulate abortion away from the people, the Supreme Court has put us in a situation where we can only shout at each other, and shout about absolutes.

Seems to me as though the Supreme Court gave people the right to regulate their own abortions. I don't really understand your cries of "power to the people" (unless you mean, power of the majority to rule the wombs of all).

How are local legislatures' pay-grades anymore conducive to making decisions on abortion than the "Supreme Court" and the "President"?

Instead of the penumbral privacy that Roe argued, I wonder why a right to abortion has not been argued from the Third Amendment...If one has the right to deny quarter to soldiers, couldn't one argue analogically that a woman has the right to refuse to harbor a fetus in her body? (I am not an advocate of abortion, and I'm not trying to be a smart-ass--it really seems to me that the Lockean ideas of property that animate the Constitution would be applicable here--having property in one's own body, etc.) I'm honestly surprised that no one, to my knowledge, has tried to take this tack.

In a democracy it is always a bad idea to have "the Court" decide anything in lieu of having the people decide. In the former case the decision, whether you are for or against, is imposed. In the latter it is decided by the majority. In some states and to some people it will be wrongly decided, but it will be decided once and for all. People tend more willingly to accept even a bad law if they feel they have had a say in making the decision.

Taking power away from the people is sort of the entire premise of liberalism, isn't it? Roe is merely one instance of that principle in action.

John, that pretty much depends on what you think you can sell to the majority. If you're a perennial loser at the polls, you hie to the courts.

Our political system was designed not only to permit various kinds of speech/argument but to permit the instantiation of those differences of opinion via local and state-level codification. Nevertheless, there are certain issues on which policy ought to be federal and thus more or less uniform across the states; I think abortion is one of them. While debates about "personhood" might take very different shape in South Dakota and Massachusetts, the operative legal definition of "personhood" ought least not in a polity in which--whatever a "person" is--persons are held to be equal in some fundamental way. It would be strange for "life" (effectively) to begin at conception in Mississippi and six months in California in a way that it would not be strange for MS and CA to have vastly different educational systems. Of course, MS and CA might attempt to influence federal abortion policy in different directions....

I am a native Californian and we have a huge problems here brought on by our California State Supreme Court of Clowns. The best example, and there are many, is the gay marriage issue. Californians voted overwelhemingly that marriage was between a man and a woman. Just a couple of months ago the Supreme Court of California handed down a decision that marriage is now between a man and a man, a woman and a woman, etc. Now there is another amendment on our ballot in November to overturn the Supreme Court of CA's decision. To me is no longer about what constitutes marriage. It is about facists justices legislating from the bench and telling me that my vote on an issue that is not covered anyone in the Constitution of the State of California no longers matters. I am pissed.

What's the question? This by Yuval Levin on Obama and the origin of life is nice. I thought you guys might like it.

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