Hill of Beans: Roe, Roe, Roe

Six Democratic presidential candidates had their first high-profile get-together last week at a celebration of the 30th anniversary of Roe v. Wade, staged by the National Abortion Rights Action League (NARAL). They didn’t look good. How could they have? In a month or so, Congress will pass–and President Bush will sign–a ban on partial-birth abortion. Once that measure goes through, it will be irreversible, since Americans oppose end-of-term abortions in majorities that resemble those in Iraqi presidential elections. So pro-choice forces are set to suffer their first major abortion reversal ever in Congress. (We can leave aside such Carter-and-Reagan-era pro-life victories as the Hyde amendment, since they mostly involved such window dressing as abortion counseling and abortion on foreign military bases.) No one at NARAL has much of a plan for what to do next.

With the ban on late-term abortions, NARAL ought to begin to ask itself whether its judicial–rather than legislative–strategy for protecting abortion rights has not maybe taken them down the wrong path. In the great wave of liberalization a quarter-century ago, other countries got abortion rights the American way–by decree–but virtually all of them subsequently passed some sort of enabling legislation. The United States stands alone as an advanced country whose abortion laws rest on no democratic legitimacy whatsoever. Manipulating the courts to secure abortion rights made political sense in the early 1970s, when majorities of voters opposed the procedure–but abortion activists have stuck with this strategy even through 20 years in which any Congress that had seriously limited abortion rights would have been punished. This is the behavior of a political system that is scared to death of democracy.

Now public support for abortion has started to wane. This is just what one would have predicted as the baby boomers (who make up over 35 percent of the voting population) move out of childbearing age. And the fact that America has no laws protecting abortion rights now presents itself as a problem for feminists. Making the Supreme Court–and not Congress–the custodian of abortion rights has put these rights on shaky ground. You can chant "Roe v. Wade is the law of the land" all you want, but that doesn’t change the fact that it’s not a law but a court decision. And this is not the biggest problem with our abortion regime. The biggest problem is that it has politicized the court on all matters, not just abortion, turning it into a mini-legislature, with democracy-warping effects. The entire moral and legal system governing sexual relations between people of childbearing age is now contingent on which of the nine sitting justices dies first, or whether George W. Bush wakes up with indigestion the next time he has to nominate someone. The result is that there really is no Supreme Court anymore. It’s more a super-Senate, which is elected by the (regular) Senate, in much the way that the (regular) Senate was, up until the 17th Amendment, elected by the State houses. It was acting in this super-Senate capacity that the Supreme Court decided the last presidential election. It ruled as wisely as it could have under the circumstances, but the circumstances weren’t exactly designed to enhance the court’s legitimacy as a court.

As an elective branch of government, the court over the last two decades has evolved its own two-party system, which pits the Abortion Party against the Anti-Abortion Party. In one of the unsung historical turning points of the last election, Al Gore gave formal sanction to this arrangement by violating a stubborn taboo. Asked in one of the debates the hackneyed, cliche-inviting question of whether he’d have a "litmus test" for Supreme Court nominees, Gore broke form. Rather than just respond with the usual palaver about just wanting justices who would "apply the law of the land," Gore said he sure as hell would apply a litmus test, though he continued to shy away from the term.

In so doing, he lifted American presidential politicking out of a slough of hypocrisy. But he also condemned the Democrats to stand forever as the party of legislative abdication and politicized law. This election cycle, abortion advocates are much less equivocal in what they demand of candidates. From the senators who are running for president (Kerry, Lieberman, Edwards) NARAL president Kate Michelman last week demanded nothing less than a promise to filibuster the confirmation of any court nominee who does not positively "affirm" a pro-choice stance. Woe betide those who don’t. Kerry and Edwards jumped immediately on board. So did Joe Lieberman, but–strange politician that he is–in such a way that he would get no credit from NARAL for his stand. Lieberman, according to his own press release, "would not apply litmus tests, but a nominee’s position on the constitutional right to choose would be one of a group of important factors." In other words, he will apply a litmus test, but he’ll get hopping mad if you call it one.

The NARAL rules are just as strict for non-senators. Missouri Rep. Richard Gephardt has two big problems as far as his feminist base is concerned. First, he opposes partial-birth abortion. Second, he came to his own pro-choice position relatively late, as he was preparing to run in the Iowa caucuses in 1988. In 1986, Gephardt was not just pro-life, but prominently, stridently so, a regular at pro-life conclaves and one of the leading proponents of a constitutional amendment banning abortion. So Gephardt now feels like he must issue a mea maxima culpa. The way he did so at the NARAL event dropped one of the most revealing hints heard in years about the true social base of the Democratic Party. Gephardt was pro-life for so long, he now says, because he was too low-class to know any better. "At the beginning of my journey in public service," he confessed, "I didn’t yet realize the full consequences of my beliefs...I was raised in a working-class family of Baptist faith... Abortion was wrong, I was taught. There was a moral reason it was illegal." But then, as he found out more, his "eyes were opened."

The speech is astonishing. It has that unconvincing, phony-folksy cringe that reminds one of West Virginia Sen. Robert Byrd explaining away his early membership in the Ku Klux Klan, or President Bush explaining away his youthful drunkenness. There’s nothing wrong with changing political opinions. What’s wrong is that Gephardt drags his poor family in and treats the evolution of his views as a conquest over their low-class ignorance. Anyone who still seriously doubts that the Democratic Party is now the party of the white social elite ought to get his hands on the Gephardt speech, which was excerpted in last Wednesday’s St. Louis Post-Dispatch.

What should soon grow obvious to Democrats, though, is that it doesn’t have to be this way. Support for abortion may have slackened a bit in the last half-decade, but it remains above the threshold where it helps candidates. It is a solid winner for Democrats in national elections. Note, please, that this renders the whole Supreme Court debate poignantly pointless–if Roe v. Wade were ever overturned, Congress would begin writing a law to relegalize abortion before the day was out. Michelman and others were right to gloat that President Bush spent the week of the Roe commemorations avoiding those who might goad him into making pro-life statements. He gave evidence of the weakness of the Republican position by hiding out in the Midwest on the day of the Roe anniversary, discussing his economic stimulus package, and then phoning in a message of support for anti-abortion marchers rather than joining them on the Mall. This is the old Ronald Reagan trick. Democrats–and the public–are on to it.

The great obstacle to America’s having an abortion law has always been that Democrats had something to lose from it. America is the only advanced country with an essentially unrestricted abortion regime, of the sort the Democrats’ feminist base insists on. For these activists, the attitude has been: If it ain’t broke, don’t fix it. A majority of Americans want liberal abortion laws, too, but they insist on having them fringed about with itty-bitty, conscience-salving regulations. Americans say they are against late-term abortions, but they favor, by wide margins, allowing abortion for the "health of the mother." A significant number of those who call themselves pro-life would even grant exceptions for the mental health of the mother, which is a third-trimester loophole you can drive a truck through.

About the only kind of abortion Americans reliably and sincerely find repugnant is partial-birth abortion. There, all the good-of-the-mother excuses break down, since the baby basically gets murdered as it emerges from the birth canal, after the mother can in any way be helped or harmed. That’s why a ban is coming. But, for all their agitation against it, Democrats could find it a boon once it’s passed. Because as soon as the president gets his bill through Congress, our de facto abortion regime will be more congruent than it has ever been with the kind of global abortion law that our elected representatives would actually pass if they were forced to. At that point Democrats may find it in their own interests to force them to, in hopes that a debate over an abortion law would cleave the Republican Party into its two halves–the lifestyle libertarians and the religious moralists. It probably would do just that. But it is unlikely Democrats would put forward such a bill. If the party’s legislators ever proposed to make the law of the land, rather than just sit back and receive it from the Supreme Court, they wouldn’t be able to spook voters with the fear that the Supreme Court would be stacked with zealots. NARAL and others have built too profitable a lobbying industry around stoking that fear to give it up blithely.