| James N. Markels | ||||
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James N. Markels 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 legalization 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 illegitimacy. 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 position 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 likely to retire 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 being 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 had 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 is something we, the people, need to hash out amongst ourselves. Until that happens, the 60th anniversary of Roe is already shaping up to be a rerun. |
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