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Sunday, July 24, 2005

MODERATELY IRONIC: If John Roberts is truly a "moderate" (as many pro-choice advocates say they hope), that's not good news for Planned Parenthood and NARAL, says John Whelan at National Review Online. Whelan's analysis of three broad stances toward the constitutionality of abortion leads him to conclude that the genuinely moderate position on abortion take a neutralist stance — meaning that because the Constitution is silent on abortion, the states should decide. That's also the view of Rehnquist, Scalia, and Thomas. Whelan's main point:
Increasing numbers of observers across the political spectrum are coming to recognize that it is well past time for the Supreme Court to restore abortion policy to the people and to the political processes in the states. As Scalia observed in his Casey dissent, the Supreme Court's unconstitutional power grab on the abortion issue in Roe "fanned into life an issue that has inflamed our national politics ever since." "[B]y foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences," the Court has profoundly disrupted the proper functioning of the American political system.
It's not widely realized that one of America's most influential pro-choice jurists believes abortion should never have been removed from the political domain:
In 1993, Justice Ruth Bader Ginsburg caused a flurry when she ... declared in a speech [that Roe] had "halted a political process that was moving in a reform direction and ... prolonged divisiveness and deferred stable settlement of the issue."
As recently as a year ago, the federalist stance toward abortion ("Let the states decide") was assumed by the pro-choice community to be merely a ploy of the right-to-life movement. Slowly it's becoming clear, even to pro-choice liberals, that a flawed judicial decision is a curse that keeps on giving. This is a far cry from the left acknowleding that it's a mistake to view the Constitution as infinitely elastic. Yet it's significant that more and more self-styled progressives count themselves part of a growing consensus that Roe v. Wade was, indeed, an Olympic legislative act in judicial clothing. History may reveal that the cause of "reproductive rights" was actually damaged by removing the issue from the political realm. How ironic is that?