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.