Ed Whelan of National Review has written this interesting article on a way of framing the abortion debate and how it will affect the Roberts confirmation battle. Whelan is against the Roe v. Wade decision and liberals and others who support Roe v. Wade clearly won’t agree with many things in his article.
But I was interested in the three positions he has staked out here, and how they affect the LDS approach to the Constitution.
Whelan lays out three approaches to the abortion debate. The first is the pro-Roe position, which says that, according to Whelan, “The Court invoked the Due Process Clause of the Fourteenth Amendment — which provides that no state shall ‘deprive any person of life, liberty, or property, without due process of law’ — to overturn the abortion laws of all 50 states. The Court ruled that the Due Process Clause prohibits protection of the lives of unborn human beings at any time through the second trimester.” As Whelan points out, many liberal constitutional law professors admit there is no “right to privacy” in the Constitution but use a variety of different arguments to justify Roe v. Wade. I took an introductory law class as an undergraduate in the early-1980s, and my liberal professor basically made the argument that there was no constitutional justification for the Roe decision (and he pointed out that the decision was very poorly written) but he said it was nevertheless an appropriate decision given the political and social realities of our time. He pointed out the horrors of forcing women into back-alley abortions and said the humane position was to allow women to choose abortion if necessary. It is worth pointing out that many Republicans, including President Ford in the 1976 elections, initially supported Roe for its political expediency.
Whelan says the “pro-life” position is the second position on Roe v. Wade . He describes this position as saying that “unborn human beings would be recognized as ‘persons’ for purposes of the Due Process Clause. The argument for this position would begin with the historical fact that, prior to Roe, the American tradition long provided broad legal protection for the lives of unborn human beings from the time that those lives were understood, in light of the biological knowledge of the age, to commence.” Whelan points out that Roberts probably doesn’t share this position and cannot be described as a “pro-life” judge.
Roberts is much more likely to have the third position that Whelan describes, which is the “substantively neutral” position, which is that “the Constitution generally does not speak to the question of abortion. Under this substantively neutral position, American citizens would have the constitutional power to determine through their state representatives what the abortion policy in their own states would be.”
In terms of labeling, Whelan says the first position is the liberal position, the second position is the conservative position and that the third position is the moderate position. Therefore, Roberts should be seen as a moderate.
It is interesting to note that the Church does support abortion in some circumstances. We do not agree with many conservatives who oppose abortion in all circumstances. I agree with the Church position and would support abortion in the cases of rapes or incest or severe medical need, for example.
It is worth pointing out that legal abortion is here to stay in the United States regardless of whether President Bush were to appoint four more justices in the Scalia/Thomas mold, who would then vote to overturn abortion. Most conservatives today primarily make the third argument, which is that the Constitution is silent on abortion and that state legislatures should decide the issue. You would have states like New York, California and Massachusetts where abortion laws would be similar to those today. And you would have states like Mississippi and perhaps Utah where abortion would be severely restricted. A wealthy or middle-class woman from an anti-abortion state would simply have to make a short trip to a pro-abortion state if she wanted the procedure. Pro-choice social organizations would help pay bus fare for poor women who wanted to travel elsewhere for abortions. I doubt that even if Roe v. Wade were overturned there would be a huge change in the social climate. And it would certainly lower the volume of today’s political debate if the issue were left to state legislatures rather than the Supreme Court.
I suspect most people see the right, left, moderate divide in terms of results not quite the abstract level you suggest. i.e. allowing some aspects of abortion while limiting more controversial aspects of it. (i.e. abortion without parental consent, partial birth abortion, 3rd trimester abortions, etc.)
Geoff, your last sentence caught me off-guard. You really think that if we suddenly announced that each state is free to decide for itself what it wants to do about abortion, the volume of the argument would lower? Instead of ten influential political action groups on each side, you’d have 200. Fundraising would go off the charts. Low-profile seats in legislatures would become vital battlegrounds, and huge numbers of previously uninvolved citizens would march on their state capitols. What Roe has effectively done is to mute the debate, making each state’s decision for it, circumventing the campaigning, politicking and debate that would certainly occur if there were 50 of these decisions to be made, by the people through their representatives. Of course, I think all that hubbub is exactly what is required by our system of government, not the current model where five justices were able preempt any meaningful republican dialogue. I think it would be a very exciting thing to see, even though some states wouldn’t have much argument.
Ryan, I guess what I meant is that it would lower the volume on the national level. I would agree with you that for a time the volume would be raised in some states. But the vast majority of states would settle the issue quickly and then get back to other business. I guess I’m looking at capital punishment as an example. In the 1970s, the Supreme Court briefly outlawed capital punishment. The national debate was huge and very loud. A few years later, the court reversed itself, and since then the volume has gone way down. Certain states have capital punishment and other states don’t. But the people in the state decide the issue so there is much less reason for out-of-control politics. Have you noticed that the Roberts nomination is all about abortion? Why is that? There are literally dozens of other issues of import — but all anybody (including me in this post, btw) wants to talk about it abortion. The reason is that people are upset about the way abortion was foisted on the country (on one side) and (on the other side) people want to make sure certain “reproductive rights” are protected.
So, let’s imagine what would happen if Roe v. Wade were overturned. In Mississippi, the debate wouldn’t last long. The legislature would quickly pass anti-abortion restrictions and then people would move on to the next issue. In California, the same thing on the opposite side would happen — the Democrats who control state government would pass laws offering unrestricted access to abortion. And then they’d get back to their usual graft and special interest appeasement (sorry, couldn’t resist a dig at the wackos in my one-time home state). Yes, there would be discussions on partial-birth abortion and whether state funds can finance abortion and parental notification laws. But these debates are already taking place, so I don’t see much change there. Obviously, in swing states like Michigan and Ohio, the debate would be more rancorous, but eventually it would quiet down.
Bottom line: a lot less volume on a national level and perhaps a lot more temporarily in some states, but in the long run it would follow the pattern of the capital punishment situation.
I did not realize there was an “LDS approach” to the constitution. I have never seen that theory applied in constitutional jurisprudence.
With so many decisions that the Supreme Court faces on complex legal issues which most Americans would find mind-numbingly boring, as compared to the extreme minority of cases that deal with abortion, why do both sides automatically focus on the candidate’s abortion views? What about his commerce clause jurisprudence, or his opinions on ERISA or intellectual property issues? Federal law is vast and very complex, and in the grand scheme of what makes up a good Supreme Court justice, his/her views on abortion mean very little, except perhaps as a small and inadequate manifestation of a larger theory of jurisprudence.
So what gives? Why do we keep talking about abortion? Is it because it’s the only legal issue that Americans think they actually know something about? Is it because it makes feel good about “taking a stand” when we come down on one side or the other of this issue?
Jordan said, “So what gives? Why do we keep talking about abortion? Is it because it’s the only legal issue that Americans think they actually know something about? Is it because it makes feel good about “taking a stand” when we come down on one side or the other of this issue?”
You talk as though abortion is on the same level of importance as a land dispute.
We keep talking about it because it affects whether developing humans get to live or not. That’s rather significant and deserving of attention.
One side feels a developing human should have an opportunity it live, even if it inconveniences a woman for 9 months (more likely 7 or 8 by the time she finds out she’s pregnant). Even many of that camp agree there are extraordinairy circumstances for which abortion may need to be an option.
Another side believes a woman’s right always supercedes this developing human’s and it isn’t fair to her to have to carry that burden for 9 months and then give it up or spend 18 years raising it.
Both sides are passionate because it is about people’s lives. Your words cheapen not only this issue but Americans as a whole. Just because someone doesn’t have a law degree doesn’t mean they can’t understand an issue or state their position and fight for it.
Ryan and Geoff,
Almost all abortion activists on both sides believe that abortion is the flash-point it is primarily because it was legislated by the Supreme Court and not the people. Abortion isn’t nearly as contentious in countries (most of them) where the laws were decided by popular opinion, largely because the side that lost knows exactly why. When one side is cheated by process, however, they are right to be outraged.
Also, while I’ve watched discussion of John Roberts position on abortion it has been extremely evident how much more powerful the phrase “supports fetal rights” is than “opposes abortion rights.” Sadly, commentators never use the former. Changing that should be a primary goal of the pro-life movement.
Adeline-
I am on your side when it comes to abortion. I do believe it is important. My point was that a supreme court justice’s views on the subject have very little to do with his/her efficacy as a justice on that court. There are many issues that the Supreme Court must decide, and even though they may not seem important to you- they are important. I realize that these issues do not get the blood flowing like a good debate on abortion, but that does not make them less important.
I just wish that the liberals and the conservatives could focus on something other than Judge Roberts’ abortion views. And I wish we could do. But you know what they say about wishes and horses.
Jordan said, “I just wish that the liberals and the conservatives could focus on something other than Judge Roberts’ abortion views. And I wish we could do. But you know what they say about wishes and horses.”
I wish they’d talk about something else too. The court will decide a great many things that affect a larger percentage of the population. Those things don’t make for good news, I suppose.
Actually, I don’t know what they say about wishes and horses. ??
Those things don’t make for good news, because often they are mind-nunbingly boring, despite their importance for our society. That’s my point. Abortion is important, and of course I would prefer to have a court that does not make up rights not in the constitution. But abortion is only a part of the consequences of this “living constitution” theory of jurisprudence. And frankly, there are many issues which the court decides that affect each of us more on a daily basis then the Court’s stand on abortion.
If wishes were horses, then beggars would ride.
As Matt points out in #6 above, Judicial paternalism upset folks alot. Romeny’s op-ed today specifically addresses this issue. The Supreme Court itself (at least Sandra Day) thought the public would eventually get used to it…
how wrong the Court was.
Yup. Yup. Fascinating.