March 30, 2008

Over at The Atlantic, Ross Douthat objects to Andrew Bacevich’s conservative case for Obama. Douthat believes Bacevich has not given enough consideration to the possibility that McCain will appoint judges who will overturn Roe v. Wade. Douthat is here trotting out the familiar line of argument that kept many dissident conservatives on Bush’s side in 2004. In fact, it’s the line of argument that has kept dissident conservatives on the Republicans”€™ side in general since 1988. Bush I, Dole, Bush II, and McCain may all be lousy for the Right, but, hey, you want your judges, don’t you?

Bacevich no longer drinks that particular flavor of Kool-Aid: “€œonly a naïf would believe that today’s Republican Party has any real interest in overturning Roe v. Wade,”€ he writes, “€œor that doing so now would contribute in any meaningful way to the restoration of “€˜family values.”€™”€ Douthat challenges him on both points.

Bacevich has the better of the argument, at least as regards abortion. The GOP has had opportunities to overturn Roe before”€”at any point when Republicans controlled the House, Senate, and White House, Congress could have restricted the Supreme Court’s jurisdiction over abortion using the powers invested in the legislative branch by Article III of the Constitution, overturning Roe at a stroke. Perhaps they were right not to do so: the powers of Article III, Section 2 have rarely been used in such a manner, and the precedent could easily have boomeranged against conservatives once the Democrats took Congress. Nevertheless, if the GOP were as adamantly pro-life as pro-lifers are encouraged to believe it is, the Republican Congress could have voided Roe any time between 2003 and 2007.

President Bush’s burning desire to appoint Harriet Miers to the Supreme Court, even though her views on Roe are a mystery (perhaps not least to herself), also signifies the weakness of the Republican Party’s commitment to ending Roe. In a rare act of resistance, the conservative movement rose up against Bush in late 2005 and forced him to withdraw her nomination and place Samuel Alito on the bench instead. Could we expect the conservative movement to compel McCain to appoint a similarly antiabortion justice”€”assuming that Alito is as antiabortion as most people think? There are two problems with that scenario: First, McCain is made of sterner stuff than Bush and has shown a much greater willingness to defy the movement. Bush has wrecked conservatism by leading it astray on immigration, foreign policy, and the growth of government, but he has never been as quick to anger movement regulars as McCain has been. Second, and more importantly, McCain would take office with a Democratic Senate, which will make appointing strict-constructionist justices difficult if not impossible.

Douthat reminds us that Roe might have been overturned in the 1992 Planned Parenthood v. Casey decision, had it not been for Justice Kennedy’s change of heart on the issue. But that change of heart speaks volumes: Kennedy was, after all, a Reagan appointee, nominated after Reagan’s first two choices, Robert Bork and Douglas Ginsburg, were rejected by a Democratic Senate. The rosiest scenario under McCain”€”in which he appoints an apparently conservative justice who can be confirmed by a Democratic Senate”€”would most probably produce a repeat of the Kennedy debacle. With a Democratic Senate, the Republicans are a long way from overturning Roe, even assuming they really want to do so.

Douthat predicts that “€œto vote for Barack Obama in 2008 is to give up on overturning Roe for at least a decade, probably for two, and possibly for all time.”€ This is histrionic. As the first comment posted in response to Douthat’s blog pointed out, the four presumably anti-Roe justices on the court are all young enough that one can expect them to be around in a decade’s time. Scalia is the oldest of the four at 72; liberal Justice John Paul Stevens is still on the court at 87. If Republicans can purge themselves of the taint of the Iraq War and clean up the party by 2012 or 2016, an opportunity to create an anti-Roe majority may arise again. Let McCain fall, and let a revived GOP, restored to some semblance of the principles of Robert A. Taft, retake the Senate and White House in the future. The alternative, electing McCain, perpetuates all the errors of the Bush administration”€”the errors that cost the GOP the Senate in the first place. McCain can be counted upon to be worse than Bush in every arena, from taxes to foreign policy to immigration. And while Bush at least tried to court conservatives, employing the now-shamed Tim Goeglein to cultivate cordial relations even with paleos, McCain’s personal history suggests he may be openly contemptuous of the Right.

The idea that voting for Obama would mean “€œgiv[ing] up on overturning Roe for … all time,”€ is absurd, though a better case against dissident conservatives voting for Obama can be constructed by suggesting what Obama might do to promote abortion, including ending the “€œMexico City”€ policy; expanding the Freedom of Access to Clinic Entrances law, which is aimed at curbing pro-life protesters”€™ first amendment rights; increasing funding for embryonic stem-cell research; and subsidizing abortions with taxpayer dollars. All of this and worse may be forthcoming from a unitary Democratic government. The Republicans are unreliable on abortion. The Democrats, by contrast, are very reliable indeed, and if anyone mistakes Bill Clinton for having been an abortion moderate, that misapprehension is only made possible because he had to deal with a Republican Congress for most of his eight years in office. It was Clinton and the Democratic Congress that gave us FACE in the first place in 1994, and Clinton also suspended the Mexico City policy.

Douthat halfway concede ones point to Bacevich, acknowledging that “€œoverturning Roe wouldn”€™t magically restore us to some Ozzie-and-Harriet wonderland,”€ though he says, “€œreturning control over abortion law to the hands of the voting public remains a necessary goal for any pro-life, socially-conservative politics that takes itself seriously as a change agent in American life.”€ Bacevich is not denying any of that, of course, and Douthat simply avoids the tough question implied in Bacevich’s article: what exactly can we expect from overturning Roe, and is whatever hoped-for good is to be achieved enough to justify voting for a candidate”€”McCain”€”who will perpetuate one unjust and disastrous war and probably start a few more? Here at Taki’s Magazine, John Zmirak has outlined some of the limits of what will and won”€™t be achieved by overturning Roe. Some states might ban abortion, others certainly would not, with the result that

“We might well be able to reduce the rates of abortion among the very poorest American women, who couldn”€™t afford a regional airfare”€”which would be a very good thing. But little more than that. Come the advent of the next Democratic president, we could expect the use of federal funds and other forms of pressure to squeeze the “€œunenlightened”€ states to get in line with those that reflect elite opinion. And the whole thing would start to erode. Of course we would fight, and we might well hold out. We might well be able to keep abortion a regional “€œprivilege”€”€”even as the influx of left-leaning immigrants continued to undermine our majorities in states across the country.”

My own projection differs from John’s in a few specifics. For one thing, I think groups like Planned Parenthood will make sure that even the poorest women can get abortions on demand. The spectacle of scores of minority women being ferried across state lines in Planned Parenthood buses on the way to abort their children would have some educational value, no doubt”€”progressives would get to see exactly whose parenthoods are being planned, and whose childhoods are being annihilated. But Planned Parenthood has always been determined to see its task through, and I suspect few progressives would find courage to object. States or a hypothetical Republican Congress could try to ban interstate travel for purposes of abortion, but that would lead the whole issue back into the Supreme Court. And one can be sure that liberals will colonize the courts with renewed vigor in an attempt to reinstate a universal right to abortion. The abortion wars will continue.

Jeffrey Rosen’s 2006 Atlantic essay “€œThe Day After Roe”€ sketches the probable outcomes of reversing Roe state by state”€”which states are likely to ban abortion, which won”€™t, and how the fight will affect Congress and the White House. Rosen’s article has dated badly”€”he wrote it to raise the prospect that overturning Roe could cost Republicans control of Congress and the White House. It didn”€™t take overturning Roe to do that, of course, the Iraq War accomplished that all by itself. Still, Rosen raises some important issues, such as the predictable effect that a handful of botched illegal abortions will have on public opinion. “€œIn the late 1960s, as Bill Stuntz of Harvard Law School notes,”€ Rosen writes, “€œnational opinion shifted after sensationalistic articles appeared in Newsweek and The Saturday Evening Post exaggerating, by at least a factor of ten, the number of deaths from botched illegal abortions. A year or two after Roe, a similarly galvanizing television image might mobilize women in swing states to take to the streets on behalf of the right to choose.”€ Professor Stuntz dramatizes the issue for Rosen: “€œIf a young woman who is raped gets pregnant and goes to a downscale abortion provider and dies from the infection, that becomes a huge story.”€

Rosen provides figures on how many states would be likely to ban abortion in the first place. “€œEven without Roe v. Wade, “€œ he writes, “€œaccording to the Center for Reproductive Rights, a woman’s right to choose would be secure in about twenty-three states,”€ due to laws or state court decisions that are already on the books. “€œAnd in seven more (Hawaii, Iowa, New Hampshire, New York, Oregon, Vermont, and Wyoming), the political climate is sympathetic to choice, and citizens are likely to demand strong new laws protecting abortion.”€ Even in those states that might ban abortion, meanwhile, the strongest prohibitions would fail, leaving abortion legal either in early stages of pregnancy or under specific circumstances. The 2006 repeal by referendum of South Dakota’s comprehensive abortion ban bears out Rosen’s point.

None of this means that the pro-life cause is hopeless. Very far from it: as University of Alabama political science professor Michael New has shown, restrictions on abortion that fall short of comprehensive bans still cut the abortion rate. Overturning Roe will give teeth to these restrictions and allow for more, and at least a few states probably will ban late term abortions outright.  Not only will there be fewer abortions”€”how many fewer is anyone’s guess”€”but a Supreme Court decision that was wrong from the beginning on constitutional grounds will have been voided, and that too is good in itself. But the blight of abortion will not disappear from the United States, and in all too many places the practice will continue in precisely the same fashion and at the same rate as it already does. This is a painful political reality; to reduce the abortion rate in the U.S. dramatically will take a long time and will require much more than the reversal of Roe. Even if the Republicans at some point have both the will and the opportunity to follow through on their commitment to end Roe, victory in the abortion wars will be a long way off. In the meantime, we should at least stay out of wars in the Middle East and elsewhere”€”though the question remains whether Obama really would be less belligerent than his rival, and whether President Obama wouldn”€™t boost the abortion rate, even if President McCain would be unlikely to reduce it.


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