Terry Eastland, publisher
|
|
ABORTION is the issue in our politics that won't go away. Consider its appearance last week in the Senate, where the Judiciary Committee held a hearing for President Bush's nominee to the 10th U.S. Circuit Court of Appeals, Michael McConnell.
McConnell is a widely regarded legal scholar who happens to hold views on Roe vs. Wade, the 1973 case in which the Supreme Court declared a constitutional right to abortion. McConnell believes that Roe was wrong as a matter of constitutional law and wrong, too, in terms of the policy it endorsed--an almost limitless right to abortion.
As you might have expected, Judiciary Committee Democrats repeatedly queried the nominee on the subject. McConnell patiently responded, emphasizing that, whatever he might think about Roe vs. Wade, it is "settled law" and that, as a lower-court judge, he would faithfully enforce it.
McConnell needs the support of one Democrat on the committee for his nomination to arrive on the Senate floor, where he undoubtedly would be confirmed. For various reasons, he may get that vote and more. But the outlook for McConnell's confirmation isn't the only story here. There also is abortion, and so there is Roe vs. Wade. And note again what McConnell said about Roe--that it is "settled law."
If you aren't a lawyer, you may think it odd to say Roe is "settled." You may think it more accurate to say Roe is "unsettling"--i.e., disturbing, disordering, and worse. You even might pick out a word like "distorting," and you would
be right to do that.
Roe declared a constitutional right to abortion, even though such a right is nowhere to be found in the Constitution. Roe said the right of privacy articulated in a 1965 case extended to abortion, even though abortion is a medical procedure that isn't "private" in the ordinary meaning of that word, involving as it does a doctor and, of course, the unborn.
Roe was so thoroughly unsettling that John Hart Ely, a young legal scholar destined later to become dean of the Stanford Law School, was led famously to write: "It is bad because it is bad constitutional law or, rather, because it is not constitutional law and gives almost no sense of an obligation to try to be."
In Roe and a companion case, the court struck down Texas and Georgia laws restricting abortion. But no state had an abortion law that could have satisfied Roe, for none permitted a right so expansive as the one the court announced. Usurping the role of legislatures, Roe unsettled American democracy. Ordinary politics--and thus the means through which people govern themselves according to their moral convictions--was mostly disabled when the subject turned to abortion.
It still is. Regulation at the margin has been possible. Of course, it always has been controversial. The resulting litigation has bitterly divided the court, which has been asked at least three times to overrule Roe.
Meanwhile, the single-issue politics spawned by Roe often has narrowed the focus of political campaigns and debate. It also has led to judicial confirmation hearings dominated by queries over abortion--McConnell's being a case in point.
|
