Who's the extremist on Roe vs. Wade?
By Steve Chapman
August 4, 2005
When T.S. Eliot wrote that "humankind cannot bear very much reality," he
could have been talking about the abortion debate. As abortion-rights advocates
try to make their case against the nomination of John Roberts Jr., they have
abandoned fact-checking in favor of mythmaking.
The myths in this case are two. The first is that Roberts is a frothing
extremist on the subject of Roe vs. Wade, the 1973 Supreme Court decision
creating a constitutional right to abortion. The second is that the American
people--the "pro-choice majority"--staunchly support that ruling and everything
it stands for.
The evidence that the nominee is a right-wing nut stems from positions he
took during his years in the White House under Ronald Reagan and in the Justice
Department under George H.W. Bush. In one 1990 case, Roberts signed a brief
arguing, "The court's conclusion in Roe that there is a fundamental right to an
abortion ... finds no support in the text, structure or history of the
Constitution." Another time, he noted a "serious problem in the current exercise
of judicial power," as illustrated "by what is broadly perceived to be the
unprincipled jurisprudence of Roe vs. Wade."
We are told that only an ultraconservative, anti-feminist zealot could say
things like that. In fact, you don't have to venture into the right-wing fever
swamps to encounter such criticism. You can find plenty of it without leaving
impeccably liberal precincts.
Former Watergate prosecutor and Harvard law professor Archibald Cox once
wrote, "Neither historian, nor layman, nor lawyer will be persuaded that all the
prescriptions of Justice [Harry] Blackmun are part of the Constitution."
The late Stanford law school dean John Hart Ely said the opinion "is not
constitutional law and gives almost no sense of an obligation to try to be."
Harvard law professor Laurence Tribe, who argued Al Gore's post-election case
before the U.S. Supreme Court in 2000, has said of Roe that "behind its own
verbal smokescreen, the substantive judgment on which it rests is nowhere to be
found." Even U.S. Supreme Court Justice Ruth Bader Ginsburg, appointed by
President Bill Clinton, criticized Roe vs. Wade before joining the court. In
1985, she called it an act of "heavy-handed judicial intervention" that
"ventured too far."
What's striking is how many supporters of legal abortion have trouble
justifying the way the court addressed the issue. So when Roberts faults the
court for its overbearing presumption and lame reasoning, he's not on the
fringes of the debate--he's smack in the middle.
The same can't be said of abortion-rights advocates. They not only insist
that Roe is sacrosanct but pretend the public agrees with them. NARAL Pro-Choice
America asserts that "surveys show that 65 percent of Americans support
upholding Roe vs. Wade."
That statement manages to be factual without exactly being true. If you ask
people whether they would like to see the decision overturned, a majority says
no. But the main conclusion you can draw from that finding is that a lot of
citizens are hazy on what the court did in that ruling.
Most people equate overturning Roe with banning all abortions. In fact, a
reversal of the decision would simply allow states to decide for themselves
whether to ban all abortions, some abortions, or no abortions.
At the same time they indicate support for Roe, Americans favor definite
limits on this procedure--including some the Supreme Court has forbidden.
"They don't want all abortions to be illegal," says public opinion analyst
Karlyn Bowman of the American Enterprise Institute, "but they're still willing
to add considerable restrictions."
Most Americans, for example, favor waiting periods and parental consent for
minors--which abortion-rights groups cannot tolerate. More important, most
Americans think abortion should be banned after the first trimester.
In a 2003 Gallup Poll, 68 percent of Americans said abortion "should be
generally illegal" in the second trimester, and 84 percent said it should be
barred in the third trimester. Under Roe, however, the government has to permit
almost all abortions, no matter when they occur.
There's no way to know if Roberts would vote to junk the 1973 decision. If
the court were to do that, though, it would merely let the electorate put its
conflicting feelings about abortion into law in a way citizens can live with.
Allowing the American people to have their way on a subject that is not
mentioned in the Constitution is not extremism. It's democracy.