THE ABORTION ISSUE REVISITED

On “The Corner” (an internet blog of The National Review on its internet website: TheNationalReview.com] an interesting discussion has been going on yesterday and today between several of the National Review’s writers. It all started when Mike Potemra commented on a quote of Judge Robert Bork included in an interview article between Stuart Taylor, Jr. and Judge Bork appearing tin the current issue of Newsweek. Andy McCarthy, Ramesh Ponnuru and Mark Steyn joined in on the discussion.

My own view is that Roe v Wade should be overturned as having been wrongly decided, a constitutional amendment should be adopted establishing that human life begins at conception and has rights from that point until natural death, and that until such time as a constitutional amendment can be adopted the matter of abortion should be decided in the legislatures of the separate states. I also agree with Mark Steyn that “For the pro-life movement in Britain and Europe, by contrast, it’s hard to argue a great principle in the absence of any on the other side: “right to life” works well against the “right to choose”; it’s less effective when the other chaps are mumbling, “Yes, well, there we are. Difficult question, did the best we could, tried to take account of all points of view, all in the past now, no point raking everything up again.”

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THE DEBATE ON THE NATIONAL REVIEW

Judge Bork on Abortion [Mike Potemra] 06/22

Judge Bork gave a fascinating interview to Stuart Taylor Jr. for Newsweek about the Sotomayor nomination. It’s well worth a read for a number of reasons — for example, he cautions Republicans that a filibuster would be unwise. But I want to draw special attention to what he said about abortion. Taylor asked him, “Was it your view that the law on abortion should be left totally to the democratic process?” Here’s Bork’s response:

I oppose abortion. But an amazing number of people thought that I would outlaw abortion. They didn’t understand that not only did I have no desire to do that, but I had no power to do it. If you overrule Roe v. Wade, abortion does not become illegal. State legislatures take on the subject. The abortion issue has produced divisions and bitterness in our politics that countries don’t have where abortion is decided by legislatures. And both sides go home, after a compromise, and attempt to try again next year. And as a result, it’s not nearly the explosive issue as it is here where the court has grabbed it and taken it away from the voters.

The question of whether policy decisions should be made by judges or by legislators is pretty much settled, at least as far as conservative jurisprudence is concerned. But as a convert to the pro-life cause of relatively recent vintage — over the past decade or so — I want to offer a different perspective on the sociology of abortion politics. Judge Bork is quite right that abortion would be a “less explosive” issue if it were turned over to the legislatures; but we should be careful what we wish for. Isn’t it true that the pro-life movement is much more vigorous in the U.S. than it is in the other countries the judge mentions? (He doesn’t name them, so I’m assuming he’s referring to European countries where abortion is relatively non-controversial.) “Divisions and bitterness” are regrettable, and I do indeed regret them, but doesn’t avoiding them sometimes exact too high a price? (A similar issue arose in President Obama’s Notre Dame speech, when he called for fair-minded words and not dehumanizing one’s opponents. Who could object to that? But there remains the danger that this search for social comity can be used as cover for defining pro-life advocacy out of the bounds of the national conversation.)

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Re: Judge Bork on Abortion [Andy McCarthy] 06/22

Mike, maybe Ramesh has a different take on this, but I imagine Judge Bork would say that the pro-life movement is more vigorous in the U.S. because abortion on demand was imposed by the fiat of the politically insulated branch and, because this was done by the Roe majority’s purporting to construe the Constitution, that makes it virtually impossible to reverse (other than by getting the Court itself to reverse it).

The movement might well be less vigorous if the issue were returned to the political process from which it should never have been usurped. But (a) that would be because there would be less abortion and more strict regulation of abortion than when legal elites were calling the shots, (b) the effect of such regulation would alter the way society viewed abortion (i.e., not as an iconic “right” but as a condemnable practice), and (c) in fact, it might not lessen the vigor of the pro-life movement at all, at least in the short-term, as the debate over abortion’s legality and regulation raged in the 50 states. (The vigor of the movement to preserve traditional marriage is pretty strong even though the courts have not usurped the issue to the degree they did with abortion.)

Keep reading this post . . .

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Re: Bork [Ramesh Ponnuru] 06/22

Whenever I hear someone speculate that ending Roe would be bad for pro-lifers, or Republicans, I always think: Interesting theory. Let’s find out if it’s right. (The last chapter of my book goes into more detail about how I think the policy debate would play out in a world without Roe.)

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Re: Bork [Mike Potemra] 06/22

I am in strong agreement with Ramesh that the overturning of Roe is well worth trying! My comments on Judge Bork had to do with the thought experiment on what would have taken place here in the U.S. in the absence of Roe — that is to say, if the issue had been left to the legislatures in the first place. If we had ended up like Europe, I don’t think that would have been a great gain, as far as protecting the rights of the unborn is concerned.

Andy raises the interesting analogy of “the movement to preserve traditional marriage.” I think that on this one, the analogy rather makes my point: What is more likely to happen in the next 50 years — the banning of abortion or the banning of gay marriages? I’m trying not to be a Pollyanna on abortion, but when the young people are turning against abortion, and in favor of gay marriage, I’d bet on abortion as the one that’s more likely to lose social (and legal) legitimacy in coming decades.

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Re: Re: Bork [Andy McCarthy] 06/23

Mike, abortion is obviously less likely to be banned because it can’t be banned barring one of two unlikely developments: a Supreme Court majority willing to overrule Roe or a constitutional amendment.

I’m responding though because I want to correct a misimpression I may inadvertently have caused. When I drew the analogy between anti-abortion advocacy and anti-gay-marriage advocacy, I meant only to compare the vigor of the two movements, not to suggest that abortion and gay marriage were on the same moral plane. I don’t think they are. The way Mike asks which of them is more likely to be banned — a question I concede I may unintentionally have invited — intimates that, all other things being equal, the answer lies in the comparative ardor of the opposition movements. But other things are decidedly not equal.

Abortion is the taking of human life. By contrast, while I believe marriage is an institution that is and should be reserved for committed, heterosexual couples, I have great sympathy for gay couples in committed monogamous relationships who desire societal recognition of their unions and the attendant protections of the civil law. That the two issues (abortion and marriage) happen to be on the same social conservative menu does — for me, anyway — mean they are matters of equal gravity.

I must say that if the only problem with gay marriage were the limited number of gay people who actually want to get married, my inclination would be to live and let live: There aren’t enough of them to pose a material threat to our understanding of marriage as an institution, and it’s hard enough to be happy in this life.

But, alas, the problems with gay marriage are (a) the activist movement behind it, which is bent on undermining the pride of place society rightly accords traditional marriage and condemning as bigotry the deference society grants good-faith religious objections to homosexual behavior; and (b) gay marriage’s being rooted in the law of equal protection rather than the political process (i.e., the indulgence of well-intentioned people). Politics has the luxury of being illogical in order to facilitate societal compromises: You don’t have to permit polygamy because it follows from the same principles by which you justify permitting gay marriage; you don’t have to coerce Christian adoption agencies to violate their religious tenets in order to facilitate gay adoptions; you can draw sensible lines that commonsense people draw. The law doesn’t easily allow for that. That’s why society would be better, healthier, and more legitimate if we kept the courts out of matters that ought to be decided politically.

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Abortion Here and There [Mark Steyn] 06/23

Re the Bork/Potemra/McCarthy discussion on abortion, I agree in principle with Judge Bork’s position in favor of allowing legislatures to decide, but in practice I agree with Mike that this would have had consequences for the vigor of the pro-life movement. As to other countries, Britain and Europe are far more advanced in their post-Christian condition, and abortion isn’t an issue. Very few social conservative issues are issues, in the sense of being able to motor a robust and well-funded lobby able to keep the pressure on squishy legislators.

At the risk of over-generalizing, in the U.S., big changes are permanently embedded coast to coast by judges claiming to have discovered a hitherto unknown constitutional right to them lurking in the emanations of the penumbra. In countries less fond of judge-made law, everything’s much more incremental and utilitarian: In the Sixties in Britain, there was no epic constitutional principle or human right attached to the abortion debate; even the churches didn’t have much to say about it. It was just a bit of legislative housekeeping: a utilitarian approach to a political problem.

There are consequences to these different routes to the same destination: By attaching abortion to a constitutional principle, the “pro-choice” crowd have found themselves publicly embracing an abortion absolutism that’s largely unknown to the debate overseas. The “principle” of Roe v. Wade obliges them to defend partial-birth infanticide, etc.

Conversely, if someone constructs a great principle as the justification for social change — “a woman’s right to choose” — it’s very easy to respond with a great principle of your own — the “right to life.” For the pro-life movement in Britain and Europe, by contrast, it’s hard to argue a great principle in the absence of any on the other side: “right to life” works well against the “right to choose”; it’s less effective when the other chaps are mumbling, “Yes, well, there we are. Difficult question, did the best we could, tried to take account of all points of view, all in the past now, no point raking everything up again.”