The Issue That Never Ends

The costs of adjudicating abortion

There are all sorts of layers of intellectual, emotional and political controversy swirling around America’s never-ending abortion debate. Unfortunately, the latest Supreme Court decision in Carhart v. Gonzales did absolutely nothing to clarify any of them. Instead we were treated to the inevitable and distinctly unedifying spectacle of the Supreme Court tinkering with the law like a bunch of three year olds with building blocks. Today’s tinkering means that the government can regulate some forms of late term abortion, while largely leaving intact the framework of Roe v Wade and Casey v Planned Parenthood.

One can safely predict that this will not stop. The tinkering will continue. One might be tempted to think that this is a sign of just how terribly complex the issues is. That would be a very erroneous conclusion to draw. This is a very simple issue on its face.

Some people believe that the state has a legitimate interest in protecting the unborn, because they do not see a qualitative difference between the personhood status of a 3 month fetus and a three month infant. Those who see personhood as a gift bestowed by a Creator are more likely to fall into this camp. Others, who see personhood as more an issue of cellular maturity, are more likely to cede to the mother the right to dispose of the on-person cellular bundle, especially if they attach a lot of weight to the sexual revolution implications of abortion.

That is it. That is the issue. Nothing more complex than that need be said.

What kind of an issue is this? If it is simple, why does it persist so? It is not a scientific issue – although advances in embryology and ultrasonic imaging are helping to refine our knowledge about the physical state of a fetus. Neither is it a “structural” issue, dealing with the workings of government or the ownership of responsibilities and decision making. Nor – contrary to what many want it to be – is it a “rights” issue. What are described as rights in the abortion context are nothing of the sort. True rights are absolute and permanent, not subject to changing political fortunes. What we are dealing with in the abortion issue are social prerogatives. Those who believe that an unborn child is not worthy of state protection believe the mother ought to be the one to decide what to do with her fetus. It is her prerogative. This failure to distinguish between a prerogative and a right is one of the most galling issue in contemporary American political discourse.

If it is not an issue of science, or structure, or rights, what then can it be? Well, if it is dealing with prerogatives then it must be an issue of values. And issues of values are absolutely the worst sort of issues to be decided by a court.

Values, by definition, are a democratic sort of thing. They are the way that we interpret our deepest beliefs, hopes and fears in the face of a changing world. Even if our core values change slowly, society can change rapidly, and the ways we choose to incorporate those values into governance and public policy must also be able to change in accordance with majoritarian views.
The Warren Court chose to engage in the role as “vanguard of progress,” not trusting a bumptious body politick to end up at the right place. It instigated a series of decisions that were nothing more than imposed values preferences that reflected the progressive elite’s preferred point of view. Rather than being honest about what it was doing, the Court disguised it’s actions as protecting constitutional rights. From public expressions of religion, to police procedures, to issues of sexual privacy and abortion, the Court blithely pushed aside the public consensus.

This has been profoundly corrosive to the political and judicial processes. Many have commented on the contribution this has made to the development of a nasty form of adversarial politics. By deliberately boxing in the values of a large chunk of the American people, the Court has prompted defensive reactions, and contributed to an Us vs. Them mentality.

Less commented on is the damage this has done to the Court’s own process. By taking a specific point-in-time values preference and encoding it as the constitutional “one right answer,” the Court forced itself into a position of have to devise ever more Byzantine reasoning to keep in synch with evolving values preferences. Rather than creating a “living, breathing Constitution,” the Court has instead frozen in place trendy constitutional thinking circa 1971 as the only right answer to abortion. It is probably asking too much for the Court to toss it all out and start over. Roe v. Wade was bad law, based on bad principles. The only thing it guarantees is perpetual conflict and ever more convoluted reasoning.

But they’ll never toss it out. So we can look forward to the next challenge. And the one after that. And the one after that. And with each one the Court will build more and more fanciful word castles, draw more and more ridiculous distinctions. When the history of the late 20th Century is written, I am fairly certain that the Supreme Court of the United States will receive its well earned scorn.

Archives of "The View from the Ground"

Send an e mail to Patrick J. Shanahan

Visit his website at: