Cover your keyboard

Cause this one's going to make you spit out your coffee:

Richard Cohen sez: Support Choice, Not Roe

Abortion is a different matter. It entails so much more than mere birth control -- issues that have roiled the country ever since the Roe decision was handed down in 1973 -- and so much more than mere privacy. As a layman, it's hard for me to raise profound constitutional objections to the decision. But it is not hard to say it confounds our common-sense understanding of what privacy is.

If a Supreme Court ruling is going to affect so many people then it ought to rest on perfectly clear logic and up-to-date science. Roe , with its reliance on trimesters and viability, has a musty feel to it, and its argument about privacy raises more questions than it answers. For instance, if the right to an abortion is a matter of privacy then why, asked Princeton professor Robert P. George in the New York Times, is recreational drug use not? You may think you ought to have the right to get high any way you want, but it's hard to find that right in the Constitution. George asks the same question about prostitution. Legalize it, if you want -- two consenting adults, after all -- but keep Jefferson, Madison and the rest of the boys out of it.

Conservatives -- and some liberals -- have long argued that the right to an abortion ought to be regulated by states. They have a point. My guess is that the more populous states would legalize it, the smaller ones would not, and most women would be protected. The prospect of some women traveling long distances to secure an abortion does not cheer me -- I'm pro-choice, I repeat -- but it would relieve us all from having to defend a Supreme Court decision whose reasoning has not held up. It seems more fiat than argument.

For liberals, the trick is to untether abortion rights from Roe . The former can stand even if the latter falls. The difficulty of doing this is obvious. Roe has become so encrusted with precedent that not even the White House will say how Harriet Miers would vote on it, even though she is rigorously antiabortion and politically conservative. Still, a bad decision is a bad decision. If the best we can say for it is that the end justifies the means, then we have not only lost the argument -- but a bit of our soul as well.

Comments

[GALA]

This guy wants to give more control to the advocates of abortion. Haven't enough babies been killed already. Abortion is abortion.

[Katherine]

I'm anti-Roe but I find the comparison to a right to drug abuse or prostitution utterly unconvincing. The right in Griswold is the right to decide whether or not to have a child without government interference. If Griswold is correct that right is also at stake in Roe. But because there is a child's life at stake too(or there is a potential child, or we don't know whether or not there is a child--the argument does not depend on certainty about the moment of fertilization)there is a strong argument that the state has a compelling interest that overrides the individual right.

[Donald R. McClarey]

Once abortion becomes a question again to be resolved by elected representatives, the pro-life cause will prevail long term. Our adversaries simply are having fewer children than those who view each baby as gift and not a problem. Additionally, the pro-aborts draw much their strenth from cultural and political currents that were initiated in the 60s. These are frail reeds on which to build a movement that spans generations, since culture and politics are in constant flux. The wisest of our adversaries understand this, and that is why Roe is their Holy of Holies.

[Matthew]

"I know of no one who has flipped on the abortion issue, but I do know of plenty of people who no longer think of it as a minor procedure that only prudes and right-wingers oppose. The antiabortion movement has made headway."

I think this observation is a good sign- that at least the pro-life view is getting a hearing in Cohen's social circle, where it wasn't in the past. Now, we need to start to "flip" some people.

Likewise, it's a very positive thing that he disapproves of Roe. It would appear awareness of the silliness Roe's reasoning is percolating through society.

[Jeff]

Katherine:

Isn't the privacy in Griswold the privacy to regulate conception? Is Griswold about the "right to have a child" or about the "right NOT to have a child"? Anyway, if indeed Griswold is about the "right to have a child without government interference", then the answer is that there is a vast difference between conceiving a child and what you do with it after it's been conceived; that abortion is about what to do after the child is already there.

But really, the deeper point is that the whole privacy thing is made up out of whole cloth. It just isn't there. "Substantive due process" is just a bugbear invented for tendentious reasons. Perhaps Cohen doesn't have the courage yet to look REALLY outrageous to his colleagues, but the logical result of his argument, despite what he says, is that Griswold has to go, too. And, really, do you imagine for a moment that it would make any practical difference if it did? Which state would dare to try to outlaw contraception today?

[fbc]

I think the author's application of this allegedly constitutional right to privacy to drug use or prostitution is very telling.

If the right to abortion (or the right to contraception) is based on a right to privacy, then how could it possibly be illegal to sell your body to another consenting adult. Especially so, since the Supreme Court's ruling striking down sodomy laws on the same grounds.

Roe v. Wade must eventually fail. The problem is getting the issue into the consciences of the American people, who have so far successfully averted their gaze whenever the subject comes up. This article shows that when someone does allow himself to think about the issue, the cracks follow inevitably.

[WRY]

Donald, I hope you are right, but remember: even though prolifers have more babies, Satan is always making new recruits: Every young person who decides to have sex outside of marriage is a fresh recruit. All you have to do is look at the ratings and content of most top-box-office movies to know that Christian sexual values are considered about as dowdy as your grandma's gingham dress.
I know there are some people out there who argue that abortion can be opposed independently from an overall Christian sexual ethic, but I believe the teaching of the popes - and practical experience - suggest otherwise.
I'm not a prophet of doomsday scenarios, but it would be a fool (or a member of the Roman Empire!) who would argue that the kind of life and culture we live today can last forever. Certainly we know that in the end giood and right triumph. But I suspect and fear that as long as this society and culture continue we will have this scourge of abortion - and other evil practices - on ours hands. The Great Depression put an end to the high-society life of the 20s. What would it take to put an end to 40 or 50 years of prosperous self-indulgence? Something, as they say, to think about.

[Faith]

Pardon me, Amy- I'm done with my coffee & I'm still gagging!!!

If they are even remotely TRULY concerned about the state of their souls, these aging boomers better rethink their position fast- as they are rapidly approaching the point in their lives where they've got one foot firmly planted in the grave.

I'd start REVIEWING if I were them...

Amen!

[Jacob]

As it was pointed out in a previous comment, Roe is the holy of holies.

There would be nothing better than to see it reversed and have abortion be decided in the state legislatures. A majority of Americans believe that abortion on demand is wrong. As soon as the fight left the hallowed halls of the Supreme Court and emerged as a real issue for politicians on the campaign trail, the political landscape would be altered forever.

[TSO]

Wow! For someone like Cohen to even question the ready availability of the Holy Sacrament of Abortion is shocking. Somewhere pigs are flying. Kudos go to him; for someone on the left to say that is like someone on the right saying "maybe we should raise taxes..."

[Ed]

If the government cannot interfere because a "right to privacy" is involved, then isn't it also true that the government providing public funding of abortions is a type of "interference" as well ? It would be interesting to see if a lawsuit could be brought against the government to stop its interference in a private matter.

[Maclin Horton]

I was about to post more or less the same comment as TSO.

[bruce cole]

I wish I could be as optimistic as some. There is an abyss from 'most Americans oppose abortion on demand' to even enacting serious restrictions, let alone making it flat out illegal. We have a huge fat streak of libertarianism in this country's history that will make for (at least as some people usually see things) some "strange allies" as things shake out at local levels, once Roe is finally overturned (as it will).

[c matt]

There would be nothing better than to see it reversed and have abortion be decided in the state legislatures.

Well, short of the SCOTUS recognizing the personhood of the unborn or a Life Amendment, I would agree with with you.

[Simon]

I'm anti-Roe but I find the comparison to a right to drug abuse or prostitution utterly unconvincing. The right in Griswold is the right to decide whether or not to have a child without government interference. If Griswold is correct that right is also at stake in Roe.

Actually, the right of privacy that Griswold (unconstitutionally) invented out of whole cloth was the right of married people to be free from government intrusion into their private lives. The whole decision was packaged around language trumpeting the sanctity of marriage.

It wasn't until a few years later that the court began striking down laws restricting the distribution of contraceptives to unmarried people. Then the court began to talk (again, without even the slightest foundation in teh Constitution) about a woman's general right to privacy and control of her body.

From there it was an easy move to Roe, notwithstanding the absurdity of pretending to discover a "fundamental right" to something that the Constitution never addresses and that no one involved in the drafting or ratification of the Constitution or any of its amendments would have recognized as any sort of right.

For anyone who respects the Constitution or the principles of representative government, it is the entire Griswold line of cases that must go. None of it has any legitimacy.

[Simon]

Although Cohen's support for Griswold is wrongheaded, that is to be expected, since people on the left routinely evaluate judicial decisions based on their immediate result ("contraception is legal") without regard to the far more important legal reasoning behind them.

Having said that, this is a VERY important column. Abortion "rights" have become such a sacred cow to the Left that most people in the middle are afraid even to challenge them. And thanks to the Left's dominance of the media, there is a widespread misconception that overturning Roe would make abortion illegal.

Unfortunately, overturning Roe would not prevent most of the violence against innocent children in their mothers' wombs. It would, however, undo the violence done to the US Constitution by the Roe regime. It would also give those of us who support the right of children in their mothers' wombs to live at least the chance to persuade our fellow citizens democratically of the justice of this cause.

Richard Cohen's honest comments about abortion and Roe help pry open the door to this outcome, which is the very minimum we have a right to expect.

[Ken]

The Great Depression put an end to the high-society life of the 20s. What would it take to put an end to 40 or 50 years of prosperous self-indulgence?

In 2 1/2 words: "Allah-u Akbar!"

[Joel]

Cohen does have one point: Roe should not be equated with legal abortion. If Roe is overturned, these things will happen:

1) Utah and Alabama will ban abortion altogether.

2) Thirty or more states will ban 3rd-trimester abortions, and will require parental consent for minors.

3) New York, California, and Massachusettes will keep abortion legal under all circumstances, just like today.

In other words, >90% of people who want abortions will still be able to get them if Roe falls.

[Ken]

The reason Roe became both a Sacred Object and snarl word is because of how it legalized abortion -- by (five-to-four) Decree From On High.

A good chunk of the heat around it is because it was Decreed By Your Betters. If abortion became legal through a long fight through legislatures and/or ballot initiatives, it would have generated less heat -- more hassle (it would have been one helluva fight) but not this constant guerilla warfare.

But Intoned By Our Betters' August Lips (all genuflect and burn the pinch of incense)...

[David Athey]

All fetuses (male and female) have a constitutional "right to privacy" in the womb.

Our laws should preserve and enforce that right.

[Donald R. McClarey]

) "Utah and Alabama will ban abortion altogether."

I would add to that list South Carolina, Louisiana, Mississippi, Alabama and Oklahoma. Additionally many of the other states in the Union would impose restrictions beyond a third trimester ban and parental consent. Informed consent laws would proliferate. State laws mandating state regulation of abortion clinics. Mandatory requirements for abortion clinics to report suspected sexual abuse of minors. Consultation of the father prior to an abortion. Legislation mandating life saving measures for viable fetuses. Heightened certification requirements for abortionists. Death certificates issued for each abortion. Requirements that aborted fetuses be buried or cremated under conditions mandated by the state. Once Roe was overturned, the floodgates would be open to legislation that has been pent up for thirty years.

[JACK]

Joel's right on the likely immediate practical results, but at least it then would be open for change versus enshrined in the Constitution. That someone who still says he is pro-abortion admits that Roe is wrongheaded is a big deal. No one should expect the Supreme Court to be the final battleground over abortion. The court is very unlikely to reverse Roe AND find a constitutional right to life for the unborn (despite what some of us might like). But at least it would not be this constant obstacle. Can you imagine the difference in the public discourse if the pro-abortion folks had to advocate for the procedure on some basis other than that the Supreme Court says its their right? It would take time for the effect of that to reveal itself, but it would be a striking shift in the landscape.

[Joel]

JACK wrote: "Can you imagine the difference in the public discourse if the pro-abortion folks had to advocate for the procedure on some basis other than that the Supreme Court says its their right?"

Bingo.

[WRY]

Call me a skeptic or a cynic, but I think most states that try to limit abortions would put in a "life or health of the mother" exception that would basically render the ban meaningless for someone really determined to have an abortion.
I don't think any of the southern states would ban it. Maybe utah and idaho out west, both of which have large Mormon populations. Maybe some small states like ND which may not even have any abortionists operating now.
20 years ago, someone close to the legislative process in a southern state told me that legal abortion was one of those dark and dirty understandings between liberals and conservatives in the statehouse. The liberals wanted abortion because, well, they're liverals. The conservatives, who came from old former plantation counties with high black populations, wanted to limit the number of black children being born. I don't know how real or true that "deal" was or whether it would still be true today.

[WRY]

Oh, it goes without saying that the most Catholic states will be uniformly pro-abortion.

Isn't that an awful thing to say? How I wish I didn't believe it.

[WRY]

Another thought on southern attitudes toward abortion. There's a very strong current in the south against welfare mothers having babies that then require public support. My dad - who cried when MLK was shot, so he was a "liberal" southerner, strongly believed in mandatory sterilization for welfare mothers.
So I think you can bet that if RvW is overturned a lot of statehouse debates are going to revolve around the cost to society of supporting the new welfare babies. It will be an odious thing to behold.

[bruce cole]

I wish we could quit flattering ourselves with this sub-populist myth that only the big bad Supreme Court saddled us with this situation. Several states had already "liberalized" their abortion statutes (please don't forget Ronald Reagan and California in 1967, for instance). Their is a reason why several people on this thread have admitted that the prospect for banning abortion is so dim: with all the qualifications, this is still a pro-choice culture and we should not flatter ourselves otherwise. Not so incidentally, how many people who say a 5-4 SCOTUS vote gave us the abortion situation would also say that a 5-4 SCOTUS vote gave us Bush in 2000? Roe v. Wade was bad in every possible respect, but it didn't come in a vacuum.

[bruce cole]

WRY is absolutely on to something. It will be terrible to behold. This is not unconnected with what I said earlier about "strange allies" being made when this all moves to local levels.

[bruce cole]

One more P.S. This by no means will play out in just "southern" states.

[Boethius]

Actually, Roe v. Wade was not a 5-4 decision. It was a 7-2 decision (with Byron White and Rehnquist dissenting). Planned Parenthood v. Casey (upholding Roe) was a 5-4 decision. And of the five, O'Connor and Kennedy upheld Roe merely under stare decisis principles.

Also, I disagree with those who say there is a pro-abortion culture. The American culture would rather not discuss the issue, but that doesn't mean they're pro-abortion. In fact, as poll after poll has shown, most Americans still oppose most abortions. If anything, that indicates that we're more pro-life than pro-abortion.

[bruce cole]

Boethius is correct, it was 7-2 (which I realized the moment I posted!) My bad....Otherwise, I have no reason to think that Our American Culture As A Whole is other than effectively "pro-choice." What would make me think otherwise? People who say they are "personally opposed"? Cynical pols who touted A Constitutional Amendment they knew had no chance? The kind of fearful symmetry between the worst on the Left and Right as outlined by WRY?

[JP]

Most people know that without Griswald, there would be no Roe. Griswald actually dealt with the use contraception for married couples. The Conneticut Blue law which forebad the sale of contraception was never enforced. A Yale law professor talked a local DA into arresting him when he purchased contraceptiion. After he was arrested, the professor filed a complaint to the Supreme Court. Bingo, a few months later Griswald was born.

The majority opinion written by Douglas, essientially invented the right to privacy as we know it. Of course, that begs the question: Privacy to do what? Within a year, the courts expanded Griswald to allow single adults to use contraceptives. Roe was the capstone of Griswald. Last year the SCOTUS overturned a Texas sodomy Law citing Griswald. In Airizona a polygamy case has entered the Federal docket. The ACLU is also using Griswald to argue that Polygamy is a protected Constiutional Right.

Griswald, as most people will admit, is a constitutional disaster. There is no constitutional right to sex period. It isn't mentioned, for the simple fact that sexual relations are a private matter, but they come under the regulation of local state goverment. We do not Federalize incest, polygamy, or divorce laws, as each state has its own way of regulating them. Griswald essientially federalizes libertine sexuality. What was once outlawed is now permitted because of Griswald.

And people wonder why the Miers nomination is so important.

[Charles R. Williams]

"So I think you can bet that if RvW is overturned a lot of statehouse debates are going to revolve around the cost to society of supporting the new welfare babies. It will be an odious thing to behold."

Well, it ISN'T right to procreate children outside of marriage and the cost to society when people do this IS a legitimate issue. Today, we dare not make it an issue because we are rightly concerned to prevent something far worse than conceiving illegitimate children - killing them.

One of the lesser costs of abortion on demand is that it undermines efforts to apply social pressure on people not to conceive children outside of marriage.

[Radactrice]

Ironically, actually there would be no Roe v. Wade without The Sisters of the Holy Names of Jesus and Mary v. the state of Oregon.

[Gashwin]

In many ways, a similar argument was made by the (pro-choice) Benjamine Wittes in the Jan. 05 issue of the Atlantic Monthly:
http://www.theatlantic.com/doc/200501/wittes

[Shaun G]

I think most pro-choicers who have really studied Roe and its related decisions understand that they are defending a not very compelling (and a not very satisfying) decision simply because they're not willing to risk losing any ground by trying to refine it.

If only that specific resistance could be overcome, I think Roe would quite easily collapse, because while it (partly) satisfies conservative/moderate pro-choicers, who'd like abortion to be less available than it is now, and it (partly) satifies extreme pro-choicers, who think even the trivial restrictions in place today are oppressive, there aren't a whole lot of people whose moral and intellectual stances place them exactly at Roe.

[Anne]

Radactrice, Would you elaborate on that statement -- i.e., that there'd be no Roe v. Wade were it not for the Sisters of the Holy Names v. State of Oregon?

As an Oregonian, I'm familiar with the SJMs successful Supreme Court challenge of the state of Oregon's shutdown of Catholic schools. But how does this relate to Roe v. Wade?

[WRY]

Charles: My point is that prolifers will be surprised to discover that conservatives whom they thought were on their side will actually be arguing for the preservation of abortion rights, on the grounds that we can't have all these welfare babies. You'll have guys saying, "Now, I'm all for the preservation of life, but the fact is we can't afford as a society to keep on supporting these welfare mothers. And for that reason I cannot support this bill to make all abortions illegal."

[Sr. Lorraine]

It's true as Bruce says above that Roe didn't come in a vacuum and abortion was already being legalized. But because of Roe it has basically been enshrined as an absolute right.
The problem is that many people equate what's legal with what's moral. Legalizing abortion as Roe did made abortion more acceptable socially.
If Roe was overturned, at least the restrictions that states would then place on it would send the message that abortion is not a good thing to be obtained at will, regardless of the circumstances. Certainly that wouldn't be the ideal situation but it would be better than what we have now.

[Andrew]

Roe and abortion are merely symptoms of the larger problem - we live in a pagan, secular culture which defines truth as whatever suits the personal taste of the person at that moment and allows human life to hang in the balance of whatever truth we deem correct. Just as Prohibition didn't stop people drinking themselves to death, abolishing abortion won't stop people from killing their children. I'm not saying it's not a worthy goal, but people kid themselves by placing overturning Roe is the solution.

Let's put it this way, in the span of a couple hundred years Europe went from a continent of paganism desolated by barbarians, with pockets of Christianity, to a Christian civilization. Not perfect, but leagues better than before. The barbarians didn't become less pagan because the law told them not to be so, but because they were convinced that Christianity offered a better future, both in this life and the next.

Cynics might guffaw that we don't need so much to overturn Roe, but to convince this nation that chopping up one's child is so beyond the pale of barbarism and against God that the very act becomes unthinkable. Unrealistic? Maybe, but we've never tried. When our priests shrink from "controversial" homilies, when Bishops can't even agree that a politician who sentences millions of kids to death shouldn't receive Communion and Catholics rush to the polls to place them in office, then it's plain that indeed, we haven't tried.

[JP]

If Roe is overturned, look for the battles to be fought in the statehouses. One of the benefits of Roe and Griswald for The Left is the focusing of resources in one area: The Beltway. Groups like NOW and Planned Parenthood only needed to lobby in one place- the nation's capital.

In a post Roe world, they would have to set up shop in 50 state capitals -many of which would be hostile to thier lobbying. The Left would end up having to openly debate on the local level. This is something they haven't needed to do in decades. I seriously doubt they have the resocurces or the ability to do this anymore.

[Donald R. McClarey]

"Charles: My point is that prolifers will be surprised to discover that conservatives whom they thought were on their side will actually be arguing for the preservation of abortion rights, on the grounds that we can't have all these welfare babies. You'll have guys saying, "Now, I'm all for the preservation of life, but the fact is we can't afford as a society to keep on supporting these welfare mothers. And for that reason I cannot support this bill to make all abortions illegal.""

WRY, can you name any big name conservatives who are making this argument? Other than a few libertarians who I do not view as conservatives, I can't think of any well-known conservative making this type of argument. The perfect rejoinder to this type of argument is of course the one I heard Henry Hyde give to devastating effect in a debate 20 or so years ago with a liberal who was making this arguement : "You are right, it is cheaper to kill them!"

[Radactrice]

Radactrice, Would you elaborate on that statement -- i.e., that there'd be no Roe v. Wade were it not for the Sisters of the Holy Names v. State of Oregon?

It is the lawsuit that began the whole "right of privacy" issue in the courts. The courts determined that parents have a right of privacy to the education of their children. If you trace all the law suit precedents as they are cited back case by case until the inception of the notion of "right of privacy," you will find yourself on the steps of the Holy Names Sister.

[Boniface McInnes]

I just want to say I wish I was as un-cynical as Andrew.

Listen to him.

[alicia]

http://wfis.org/pdfs/memo/memo_5_00.pdf
is a brief history and commentary on the Oregon schools case