Evading the Abortion Issue
The Papers of Record over the weekend had two items that cast a revealing light on the shifty reasoning behind the current conservative drive to ram "strict constructionist" judges through the Senate. In WaPo, George Will, through the device of putting unlikely words in George W. Bush's mouth, argues that this drive is only incidentally about abortion; Roe v. Wade needs to be reversed, he suggests, not because it is likely to lead to the outlawing of abortions (he denies, in fact, that states would do anything of the kind), but simply because the decision was such an egregious affront to democracy.
Meanwhile, The New York Times reported that Christian Right leader James Dobson is issuing threats to "red state" Democratic Senators to take them down in 2006 if they interfere with the GOP's judicial nomination agenda. Indeed, Dobson promised "a battle of enormous proportions from sea to shining sea" if Bush doesn't get his wat in shaping the courts, and especially the High Court.
Now: does anyone really believe James Dobson gives a damn about theories of constitutional interpretation, judicial review, or the policymaking powers of state governments? Is it conceivable that if Roe is reversed Dobson will get out of politics with a deep sense of satisfaction, happy to trust the wisdom of the states on how to regulate abortion? Is there any doubt that Dobson would be the most avid supporter of judicial activism on earth if a future Supreme Court were to recognize the fetus as a human being shielded from destrution under the Equal Protection Clause? Of course not. He wants to criminalize abortion by any means necessary, and all the talk about "activist judges" is just a shuck.
I realize there are legitimate arguments against Roe's constitutional provenance; Justice Ruth Bader Ginsberg, for example, wrote about them before her own appointment to the Court. But there are not a few questionable decisions in the Court's recent history, including, ahem, Bush v. Gore, and just about every opinion penned by Sandra Day O'Conner. But somehow these shaky decisions don't lead to a relentless campaign to reshape the federal judiciary. That's because the real issue here is abortion, and nothing else.
Pro-choice advocates frequently make the mistake of suggesting, and perhaps even believing, their opponents are motivated by generally reactionary social views at best or by savage misogyny at worst. Some of them may well fit that profile. But for the most part, serious right-to-lifers oppose abortion because they think it's legalized murder, adding up to an ongoing American Holocaust. So they aren't going to stop at overturning Roe v. Wade; and their ultimate aims include bringing the full power of the state to bear on physicians and women to stop every abortion for every purpose at every stage of pregnancy. And if you thought legalized abortion represented mass murder, you'd probably feel the same way.
I can't completely explain why fundamentalist Protestants have joined conservative Catholics in taking this position. Catholic opposition to abortion is rooted in an Aristotelian natural law tradition that goes right back to scholasticism, and sola scriptura Protestants have to twist the Bible pretty hard to come up with much of anything on the subject. But it's important to understand these are serious people who are deadly serious about their goals.
For that very reason, pro-choice Americans need to be highly strategic in how they deal with the current drive to outlaw abortion one step at a time. Don't concede the "judicial restraint" argument by opposing every conservative judicial nominee regardless of his or her actual impact on the law. Don't help serious right-to-lifers disguise their agenda and win unwitting allies by treating every proposal to marginally (or in most cases, symbolically) restrict abortions as though they represent a fundamental threat to the right to choose. Don't demonize Democrats who fail to meet some absolutist litmus test. And do keep your eyes on the prize: the basic right to choose, which for the foreseeable future is going to be challenged as never before by people who haven't for a moment forgotten their ultimate goals.