Dan Among Den

Let me start out by saying that I don’t think that the selection of a single Supreme Court justice is going to lead to the abolishment of abortion in this country. For that matter, I don’t think two or three will do it either. For that matter, I don’t think that even overturning Roe v. Wade will do it. Why? Because at the bottom line, Americans have gotten used to abortion as an option, and they’re not about to give it up.

Even the Republican majority in Congress knows this. While they play lip service to pro-life lobby, I am confident that they understand it would be suicide for the party to outlaw abortion. Now, here I’m making two assumptions that I cannot back with hard fact. First, it is well known that a significant majority (something like 60-75%) of Americans are in favor of having the abortion option, at least in the general sense – I’ll discuss certain exceptions below. I say that this is an unprovable assumption because it’s one of those things I’ve heard so many times that it’s just become something that “is well known.” It turns out that many things that are “well known” are actually quite false. This could be one, but I have no reason to believe it. As each year goes by, the citizenry becomes more pro-choice by the simple fact of inertia, i.e. don’t make big changes. Second, politicians… well, especially elected, majority politicians are generally a shrewd bunch politically. They can read the tea leaves better than any commenter such as myself, and unless they’re really ready to convince that large majority to change its mind, then they’re not going to push the issue.

Of course, there has been some pressure on abortion from Republican corners, but these have been at the fringe of the issue. Three cases come to mind: parental notification for girls under 18, partial-birth abortion [1], and pre-abortion counseling. Now, I have heard arguments on both sides of these, and I’m not going to rehash them here. I just want to point out that these regulations or suggestions are a far cry from outlawing all abortions. The left, however, sees these in one of two ways. Some vocal Democrats see any infringement of the right of abortion as an unacceptable attack on women’s rights, and that the woman’s right to choose is the only moral issue. Other Democrats or left-leaning moderates fear these not for what they actually are, but for the step they take down a perceived slippery slope toward the abolishment of abortion. This second group may see the validity of these Republican proposals, but they dare not embrace them for fear of more. [2]

I have stated that I don’t think that abortion is in any real danger, so let me make my meaning more explicit. In the course of development for a fetus, it goes through various stages on the path towards being “viable”. To be “viable” it must be able to have a reasonable chance of surviving outside the womb. This is mostly tied to lung development, and the threshold is around 26 to 30 weeks out of a 40 week term. In other words, it’s at about the end of the second trimester and heading into the third. I suspect that abortions before the line of viability are in no real danger of ever being outlawed barring some apocalyptic change to the body politic. [3]

Since I believe that Roe v. Wade primarily legalized first trimester abortions (though I confess my knowledge here is spotty), this is a broader acceptance. This belief that these pre-viable abortions will remain legal is not based on a fine reading of the Constitution or mind-meld with Congress. It’s just a feeling that the common man (and woman) on the street would accept it as a reasonable place to draw the line. This is not to say that all abortions after that should be forbidden, but I think support for them will drop off as the weeks ratchet up. If it were left to the states, I suspect Kansas would cut as close to 26 weeks as possible, requiring a doctor’s opinion on viability afterwards, while Vermont would push it as late as the feds allowed.

But this isn’t supposed to be about majority votes or the whims of the body politic, right? It’s supposed to be about a fundamental, Constitutionally guaranteed right. Well, that’s where we run into the problems. Depending on your judicial philosophy, it’s either there, or it’s not. I’m going to butcher some terms here, but this fight is between originalists and constructionists. (I’m pretty sure about the first term as valid, but not the second.) The originalists take a very limited reading of the Constitution, and try not to read too much into it, basing their legal rulings on the text of the Constitution or the law in question. The constructionists take a broader view, looking for such things as the intent of the founders or legal authors and discerning how they would view the case at hand. Neither philosophy is inherently pro-choice or pro-life, but they can come down with markedly different rulings across a variety of issues, from gay marriage to medical marijuana and eminent domain.

Now, personally, I lean more towards the originalist side of things. The role of the judiciary is to interpret the laws, not to summon the spirits of authors long-dead and discern their intent on an issue they had never imagined. Legal authors have given us their words to express their intent, and they chose those words with care. If those words now express an unpopular or repressive opinion, it is not the role of the judiciary to reinvent the law. That task falls to the legislative branch with some involvement of the executive.

Now, from an originalist point of view, the right to abortion is not in the Constitution. [4] This aspect is not under much debate. [5] The left knows that an originalist will not find the right to abortion in the Constitution because it just isn’t there in the text. That is why they are so opposed to the nomination of one, and Bush has made it clear that is the kind of judge he intends to nominate. The legal right to abortion was created by judicial fiat and can be removed by judicial fiat.

Does that mean that originalists are bad for the country and for the rights of its citizens? I think not. I think originalists are good because they increase the predictability of the interpretation of the law. With a court full of them, we would not have the stretching of the commerce clause in the recent medical marijuana case nor the sweeping Kelo ruling on eminent domain. They are not against protecting rights. They are against inventing rights, but they are also against inventing powers. Yes, I’m aware that there have been some good rulings to come out of the constructionist viewpoint, so it pays to have some of both, but I still lean towards the originalist viewpoint because it has fewer surprises.

So, where does that leave us Roe v. Wade, and where does it leave us on abortion? As I’ve stated before, the two are separate questions. As for Roe, an originalist court could very well overturn it or limit it or, with help from the constructionist end of the bench, reconstruct on a different legal foundation. Either way, in five or ten years, we may be talking about some other case as the fundamental legal ruling on abortion. But as for abortion, I don’t think it’s going away unless a pro-life construction court finds a penumbra to declare it illegal.

So, what should the left do? It could choose to fight the nomination to the last man, but that strategy has not helped them in the past. It cost Daschle his seat, and it has hurt the Democratic Senators in the polls as the filibuster fight played out this spring. Should they embrace the devil just to get a pro-choicer onto the bench? Some would argue that that is precisely what they are doing by hinting their support for Attorney General Gonzales, a pro-choice judge who just months ago was being labeled an advocate and enabler of torture by some of the same Democrats who now support him for the Supreme Court.[6]

No, in my opinion, the left should take a page from the right. If they start getting rulings they don’t like, then they should take it out the hands of the judiciary. In this case, that would mean amending the Constitution. After all, the founders recognized that their words were incapable of addressing all future issues, so they gave us a mechanism for updating those words. If my first assumption about the quiet pro-choice majority is correct, then there is support for this. Now, it’s unlikely they could enshrine partial-birth abortions into the Constitution, but they could still get something that covered the vast majority of cases. Thus, I suggest something like:

The rights of female citizens of the United States, who are of eighteen years of age or older, to abort a fetus prior to the twenty-seventh week of gestation shall not be denied or abridged by the United States or by any State.[7]

Congress shall have the power to enforce this article by appropriate legislation.

It won’t satisfy all, but I believe it will satisfy enough to pass. It won’t be easy, because the same politics that make for a Republican or divided Senate will make for a difficult passage in the various “red” states of the American heartland. On the other hand, not all Republicans are truly anti-choice in this area. I believe that most recognize it as practical reality in the land and want to move beyond it. Meanwhile, if there really is a pro-choice majority out there, then this vehicle would be an excellent vehicle for the Democrats to reach and energize those voters. Rather than being seen as the party committed to obstructing judicial confirmations, they could be seen as the party taking real steps towards securing the rights of women in this country.

Then we can return judicial confirmations to a review of qualifications rather than the abortion brawl they have become.[8] At least, that is, until gay marriage emanates from a penumbra of the Equal Protection clause. But that’s another blog entry.

I have just one final postscript to add in my support of the dual strategy of originalists and amendments. There are many legal rights that have been recognized by the courts over the years (privacy among them) and that various parties wish the courts to recognize. Relying on the courts this way is dangerous, because what they can grant they can take away. It is far better to establish these rights in the Constitution and then not let the courts get so adventuresome on either rights or powers.

- - - End Notes - - -

[1] I must confess that partial-birth abortions are one of the few things about this debate that gets my ire up. The procedure in itself seems to be a barbaric practice, and after witnessing the birth of my three children, I find it quite disturbing. But whether something disturbs me should not be a guide to rights in this country. What really gets my ire though, is that it is defended primarily as a procedure to protect the life of the mother. Well, I’ve seen the trauma of a feet-first delivery (something required in this procedure), and I’ve seen women getting over a C-section, and while the C-section recovery seems to be about 50% longer, it is rarely considered risky. I suppose what I’d really like to see is to put the doctors involved in front of an AMA review board to explain why a C-section of a viable fetus was too risky for the mother. I’m not a doctor nor a mind-reader, so I can’t pre-judge any such explanations, but I must confess that to my layman’s observations I suspect they would have a hard time making a convincing argument. At the same time, not everything that is wrong needs to be illegal, any more than making everything virtuous mandatory.

[2] The left is not alone in this kind of paranoia. Many on the right would support stem cell research, but they are worried that it will begin an ethical slide into something much different.

[3] Put the conspiracy theories down. A second Bush term does not count as an apocalyptic event.

[4] At the same time, I’m not so sure where the Constitution grants Congress the power to regulate abortion, though the commerce clause seems to fill in for just about anything these days.

[5] To be appallingly brief, the Constitutional support for abortion in Roe v. Wade was an extension of the right to privacy established in an earlier Supreme Court ruling, but even that “right to privacy” was tenuous in its Constitutional support. It was that ruling that gave us the oft-parodied phrase “penumbras and emanations”. So, I guess Roe v. Wade is an extension of an emanation from a penumbra. A true originalist would never stand for such reasoning and would stand ready to sweep the legs out from under Roe v. Wade.

[6] Apart from any feelings towards Gonzales’ performance in the Justice Department, I think it would be impractical for him to be on the Supreme Court. With various legal issues regarding POW and enemy combatant detention practices working their way through the courts, Gonzales would have to recuse himself if any of those got to the Supreme Court as they seem destined to do. Given that such a ruling will have profound impact on the foreign policy of the United States, I would not want to see the Supreme Court divided four to four.

[7] I was tempted to add a clause to the effect that the power to regulate abortions after the twenty-seventh week would be left to the States but denied to the United States. That would prevent a federal law limiting abortions to just those protected by the amendment and allow it to vary state by state as local desires dictated. However, I didn’t see that kind of language elsewhere in other amendments, so I held off.

[8] In a pragmatic, cynical matter, this would also give both parties the chance to muzzle certain loyal but troublesome elements in their ranks who have tried to make abortion the only issue in American politics.