Michael Gerson makes some perceptive observations in his latest Washington Post column on the debate over abortion. They include the risks of the increasing radicalization of both political parties:
Decades ago there were more pro-choice Republicans and pro-life Democrats to help blunt the partisan edge of the debate. Now, views on the topic have sorted by party and geography. The GOP has become captive to an ideology of power that often (on issues such as immigration, refugees and poverty) belies its pro-life pretenses. And many Republican state legislatures — where post-Roe legal changes will mostly play out — have become laboratories of radicalism.
the legal aspect of the SCOTUS decision, generally ignored by its critics:
Roe has always been vulnerable because it was so poorly argued. Its medical line-drawing was fundamentally arbitrary. Its legal reasoning was uncompelling, even to many liberals. “The failure to confront the issue in principled terms,” said Archibald Cox, President John F. Kennedy’s solicitor general, “leaves the opinion to read like a set of hospital rules and regulations. … Neither historian, nor layman, nor lawyer will be persuaded that all the prescriptions of Justice [Harry] Blackmun are part of the Constitution.”
The breathtaking overreach of Roe has been cited as the cause for an enduring political backlash. And one legal mind who famously did the citing was Justice Ruth Bader Ginsburg, a strong supporter of abortion rights. Speaking at the University of Chicago Law School in 2013, Ginsburg faulted Roe as being too sweeping, giving the pro-life movement “a target to aim at relentlessly.” Abortion rights, she argued, would have been more deeply rooted had they been secured more gradually, in a process including state legislatures — which in the early ’70s were moving toward liberalized abortion laws. “My criticism of Roe,” she said, “is that it seemed to have stopped the momentum that was on the side of change.”
a succinct statement of the battlespace:
Tens of millions of Americans believe abortion is a fundamental right. Tens of millions believe developing human life has moral worth and should have legal protection.
the inherent fragility of relying on weakly-argued court decisions:
In the United States, lasting legitimacy is the product of democratic consent. Rule by court diktat is written in sand, even if the tide rises only once in a half-century.
Here’s his conclusion:
For the foreseeable future, the abortion debate — with all its tragic complexities — has been returned to the realm of democracy. And there is little evidence our democracy is prepared for it.
The irony, of course, is that those who despise the decision include in their criticisms that it is undemocratic. One wonders what they mean by democracy? More on this in my next post.