Abortion and the Real Impact of “Judicial Activism”

It’s dangerous in politics to have no friends and abortion has no friends.  No one says, “I want to grow up and have an abortion.”  It’s not on anyone’s bucket list.  There are no cheerleaders for abortion.  It isn’t fun, it isn’t glamorous.

Fundamentalists may see abortion, as they seem to regard all other issues, as black and white. But those of us who are unaccustomed to hearing the audible voice of God must wrestle with the ambiguities of this issue as best we can.  Even the Republican Party platform in the year Reagan was first elected, “recognize[ed] the differing views on this question among Americans in general – and in our own party.”

Abortion has no friends because the popular movement to liberalize abortion laws was cut off abruptly by the Supreme Court’s decision in Roe v. Wade.  Having new rights commissioned for us by the Supreme Court might seem at first like a great thing, but it can have consequences that warp our politics.

Why are there so few voices inside the Republican Party standing up for a reasonable position on abortion?  I believe there are two reasons.  First, there is a perception that it doesn’t matter much.  As a political issue abortion is mostly a settled question.  In spite of decades of efforts from the anti-abortion movement, Roe v. Wade has been reaffirmed and strengthened over the years.  It isn’t going anywhere.

Second, doing something as simple as publicly recognizing the moral ambiguities of abortion will make you the target of some very determined and unreasonable people.  They are fostering a frightening atmosphere of violence while suffocating any dissent.

This creates an unusual political dynamic in which politicians, at least on the Republican side, have every incentive to issue the most extreme denunciations of abortion, and almost nothing to gain from holding back.  You might feel a firm personal conviction about a woman’s right to make her own reproductive decisions, but you know that you’ll never at any point in your career be forced to cast a vote of any consequence on the subject.  You may have the moxie to buck the trend, but you are likely to lose.  Over time that dynamic has silenced reasonable voices and empowered the most extreme and the most cynical.

Regardless of how you feel about abortion rights, this highlights one of the most potent criticisms of decisions like Roe v. Wade.  When politicians feel like they can count on the courts to nullify all of their nuttiest actions there is less incentive for them to be rational.  The worst consequence of the bold, activist stance of the federal courts in the sixties and seventies is the way it has sponsored juvenile behavior from elected officials in our time.

We have grown to see the Supreme Court as the adults in the room who will protect us from the consequences of our most infantile acts.  It has protected us from some extremes and advanced the cause of liberty in the short run.  But over the long term maybe this is not such a good thing.  It has perhaps left us all with less of an investment in the democratic process and left our politics immature and brittle.

When the Supreme Court uses its power to create sweeping new civil liberties it is easy to feel a cheer coming on.  Those of us who cherish human freedom and see great power in laws that protect the dignity and rights of all of us love to see the law standing on the side of liberty.  But it would be wise for us to take a moment to consider the consequences.  The next time we see some new protected right emerge fully developed from the pen of a Supreme Court Justice we should ask, “Why weren’t we able to accomplish this ourselves?”  The liberties we fail to earn may be liberties we are unable to keep.

Is it possible to pass legislation that would step us back from “abortion on demand,” reduce the frequency of abortions, and also square with the requirements of Roe v. Wade?  Recent Supreme Court decisions in cases involving late-term abortion have made clear that there are options. Legislation protecting viable fetuses which includes reasonable consideration of the mother’s interests would be likely to withstand constitutional scrutiny.

Why is there so little interest among Republicans in promoting such legislation? Perhaps after decades as a political football this issue is just too valuable to destroy. In the present climate, there is little incentive for either side to reach a compromise.  And the money keeps pouring in…

The abortion issue is an opportunity for reasonable voices in the Party to prove they are serious and weaken one of the pillars of the extremist fringe in both parties. Sponsoring responsible, considered abortion limits, calculated to pass constitutional muster, could set to rest a matter that has siphoned precious energy. It would be a potent victory for serious conservatives that could have far-reaching impact beyond the issue itself.


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