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Jewish World Review Jan. 28, 2003 / 25 Shevat, 5763

John Leo

John Leo
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Core issue of abortion sealed off from public input

http://www.NewsAndOpinion.com | There's good news and bad news for both sides of the abortion debate.

Good news for pro-life: We have seen a sea-change against abortion in popular opinion, particularly among the under-30s, the most pro-life age cohort since the Roe decision. Every poll has picked up this shift.

Two factors caused it: the debate over the barbaric partial-birth abortion procedure and dramatic improvement of ultrasound images. Women who paste ultrasound images in their photo albums and watch TV videotapes of a fetus sucking its thumb are unlikely to think of pre-born babies as mere collections of cells. The upsurge of fetal imagery in TV ads (and on the cover of Time magazine) reflects the shift in public attitudes. So does the inclusion of pro-life sentiments in TV scripts -- unheard of a decade ago.

In the words of pro-life Harvard law professor Mary Ann Glendon, this shift has opened up a gap between the "rigid, lethal logic" of the court majority and the more complex moral sentiments of most Americans. (She was referring specifically to Justice Stephen Breyer's callous majority decision in Stenberg v. Carhart in 2000, the partial-birth abortion case, which did sound a bit like a German judge defending Dr. Mengele's little experiments.)

Good news for pro-choice: Despite the upsurge of pro-life opinion, anti-abortion people are still losing badly. Teresa Wagner, editor of the pro-life book "Back to the Drawing Board," says that "legally speaking we are further behind now than in 1973." Even if President Bush gets to pick three or four Supreme Court justices, a reversal of Roe can be regarded as unlikely, if only because the resulting turmoil and a possible wave of Prohibition-era-style lawlessness would be blamed on the court. When it veered away from reversal in Planned Parenthood v. Casey in 1992, the court whined about its prestige and the respect due its past decisions. It may well veer the same way for the same reasons the next time abortion comes up, too.

If pro-lifers are gaining adherents, why do they seem to be falling further behind? One reason is that in the past 30 years or so, a great suffocating cloud of nonjudgmentalism has settled itself over American culture. So an individual's moral conclusion that abortion is wrong can be deflected away from concern and action by the thought, "But who am I to judge other people, or to force my beliefs on them?" (Topic for meditation: What would have happened if a similar cloud of who-am-I nonjudgmentalism had descended upon the slavery issue in 1860?)

Reason No. 2: Because of the Supreme Court's Roe v. Wade and Doe v. Bolton decisions, there is no place for anti-abortion opinion to gain a legislative voice. Abortion regulations and partial-birth abortion can be voted on, but the core issue is sealed off outside democratic procedures.

This has happened in no other modern democracy. European nations reached tolerable accommodations on abortion by leaving the matter to the normal bump-and-shove politics of lobbying, persuasion, head-counting and compromise. The poisonous conflict we have had here is the result of the court's disastrous attempt to impose a decision without democratic input.

In drawing up his trimester scheme for Roe, Justice Harry Blackmun was functioning as a one-man legislature, not as a judge. Glendon says it was only when she studied how other nations handled the abortion issue that she realized "how unhealthy it is for democracy itself when the courts -- without clear constitutional warrant -- deprive citizens of the opportunity to have a say in setting the conditions under which we live, work and raise our children."

For some court-watchers, the continuing battles on judges focus on the narrow issue of whether nominees look favorably or unfavorably on abortion. But a bigger constituency has a broader concern: whether we can manage to name judges who won't drift away from the Constitution and impose "landmark" solutions to issues that belong in ordinary politics.

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JWR contributor John Leo's latest book is Incorrect Thoughts: Notes on Our Wayward Culture. Send your comments by clicking here.

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