Redstate

Remember Who Made This A Divisive Issue

By Dan McLaughlin Posted in Justice Scalia | Life Issues | Roe v. Wade — Comments (6) / Email this page » / Leave a comment »

I can't add right now to Alex and RightMichigan in commemorating the horror or legal abortion on this 35th anniversary of Roe v. Wade, other than to note the rhetorical corner the proponents of legal abortion have painted themselves into these days. They can't plausibly argue that Roe is well-reasoned constitutional law or embodies a rule that was ever envisioned by We The People in adopting any part of our Constitution, so they are forced to rely on the notion - itself a caricature of conservatism, ironically - that the Court having made a mistake ought not to correct it. They argue as well that the issue is not for the people, having been "settled" by their betters on the Court. They fear arguing on normative or religious grounds that an unborn child is not a human being, but they are equally insistent that the matter is not one for science, as the scientific evidence (of the development of the unborn person and his or her viability outside the womb) has only moved against them in the intervening three decades. Indeed, one searches in vain for a strictly secular and scientific definition of a human being that doesn't come down to the unique genetic code that each of us receives as an embryo and that remains our scientifically traceable unique identifier throughout our lifespans and even after death. (Call an unborn child a "clump of cells" if you want; you still haven't answered the question, "well, whose cells are they?") There's a recipe for legitimate decisionmaking: no popular legitimacy, no grounding in law, religion, morality or science. Just an exercise in raw political will.

Anyway, the merits aside, I think we would do well this day to reflect on Justice Scalia's observation about the political impact of Roe and its distorting influence on our national politics, the courts and the rule of law:

Not only did Roe not . . . resolve the deeply divisive issue of abortion; it did more than anything else to nourish it, by elevating it to the national level, where it is infinitely more difficult to resolve. National politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress before Roe v. Wade was decided. Profound disagreement existed among our citizens over the issue - as it does over other issues, such as the death penalty - but that disagreement was being worked out at the state level. As with many other issues, the division of sentiment within each State was not as closely balanced as it was among the population of the Nation as a whole, meaning not only that more people would be satisfied with the results of state-by-state resolution, but also that those results would be more stable. Pre-Roe, moreover, political compromise was possible.

Roe's mandate for abortion on demand destroyed the compromises of the past, rendered compromise impossible for the future, and required the entire issue to be resolved uniformly, at the national level. At the same time, Roe created a vast new class of abortion consumers and abortion proponents by eliminating the moral opprobrium that had attached to the act. . . Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court, in particular, ever since.

Planned Parenthood v. Casey, 505 U.S. 833, 995-96 (1992) (Scalia, J., dissenting). Recall those words next time you hear pro-lifers accused of being the divisive ones. It was the authors and proponents of Roe who made abortion a national issue.