by William Murchison It is an image we might ponder in this political season. I will supply some reasons for this-after a few moments of weary reflection on the abortion debate, as conducted in the 2000 presidential election. Anyway as conducted through August. There is after all such a thing as a deadline, and my present one fell shortly after Labor Day. Prior to the conventions, not much, regarding abortion, went on. Bush's pro-life convictions were respectfully noted by religious conservatives, who found him less intense but more plausible than Alan Keyes. Which made him, in their eyes, worthy of support. Dr. James Dobson, of Focus on the Family, did feel obliged to waggle a finger at Bush as he contemplated running mates. No pro-choicers (such as Pennsylvania Gov. Tom Ridge), was Dobson's warning. Dick Cheney's pro-life voting record swept aside further cavils. The Republican platform affirmed an unborn child's "fundamental right to life." No quarter was offered exponents of the we-recognize-differing-viewpoints school. That was that. As for the Democrats, Al Gore, who long ago shed like a snake's skin such stray pro-life thoughts and actions as used to become ordinary Tennessee congressmen, held firmly to his more fashionable set of convictions. At the Los Angeles convention, the right to choose seemed as inarguable as the right to a ham-and-cheese on rye. Invoking God's blessing upon the Democratic convention, Roger Cardinal Mahony of Los Angeles made headlines by imploring the Maker to "keep us ever committed to protect the life and well-being of all people, but especially unborn children, the sick, and the elderly." There was no flap. Democrats may have recalled that not even Mother Teresa's open appeal to President Clinton, concerning the sanctity of unborn life, took visible lodgment in Democratic consciences. What a prospective saint had proved unable to accomplish, no mere cardinal was likely to achieve. The abortion debate in 2000-as in 1996, 1992, 1988, and so on, to that time whereof the memory of man runneth not back to the contrary-has been a non-event, in keeping with abortion's status as a political non-issue. Democrats continue to express shock that anyone would question a woman's hard-earned (and way overdue, got that, buster?) right to choose. Republicans for the most part are gently remonstrative: eager to put forth alternatives such as adoption while talking dreamily of a constitutional amendment that no one, including those who talk about it, believes likely to be ratified, short of the Second Coming. The impression could arise that Democratic politicians regard "the right to choose" as one of those high imperatives toted down from Mt. Sinai by Moses -save that to acknowledge religious revelation would be to Blow Up the Wall of Separation Between Church and State. The party platform would have it in any case that Democrats firmly back "the right of every woman to choose, consistent with Roe v. Wade, and regardless of ability to pay." This is not exactly language that celebrates the taking of unborn life; nor is it language that sees in the issue enough moral content to remark. It is political language, uttered in a political context. Republicans operate in the very same context. A politician's job, most of the time, is to disagree without being so disagreeable as to forfeit a lot of votes. Republicans scoff at the Democratic claim of a fundamental right to do away with unborn children. What the country needs, they assert by way of contrast (as they have formally asserted since 1980), is a constitutional amendment to protect human life. Now an amendment of this nature, from a pro-life standpoint, would be an almost unambiguous good. (Its downside would be the federalization of an issue that, prior to Roe, was legitimately reserved to the states.) The whole problem is, Republicans know that the ratification of such an amendment is about as likely as a Presidential Medal of Freedom for Ms. Lewinsky. The amendment process is too lengthy and complicated and politically charged to accommodate controversial changes in social policy. A couple of decades ago, the Zeitgeist itself, with all its huffing and puffing, failed to blow away crucial opposition to the Equal Rights Amendment. If feminists-far harder-nosed and more brutal (when it comes to political tactics at least) than conservatives-could not get their way via politics, how much more is to be expected of gentle Catholic nuns and the ladylike followers of [Concerned Women for America founder] Beverly LaHaye? To this observer the Human Life Amendment-excellent and unimpeachable in philosophical grounding-seems a non-starter; necessary perhaps to assert but, under present circumstances, unattainable. As if to clinch the matter, polls show about two-thirds of Americans hostile to such an amendment, with just barely a fourth in favor. Meanwhile the Democrats, knowing on what side of the bread the butter is slathered, make righteous noises about a right that has existed less than three decades-the right "to choose." Note the delicacy-even the nervousness -with which these exercises are conducted. The right to choose what? Oh-the extinction of an unborn life. Why, that doesn't sound like what a Party of the People should plausibly affirm-the eradication of people. But to that point-the point of looking intently at sonograms-we rarely come in the political process. We are cautious, careful. Complexities entangle us. You know what you can always do about complexities, don't you? That's right: ignore them; save them for another day, like the Sunday New York Times. The insincerity of political discourse on abortion is among the most notable features of modern politics-as the campaign of 2000 amply reminds us. Around and around and around the human-life question the politicians circle: wagging fingers, for the most part, casting nervous or terrified glances at favorite constituencies. Are folks nodding happily? Whew. We began this discussion talking of long-dead Greeks and sharp, shiny swords. What have abortion controversies to do with such matters? They have chiefly to do with the need for an end to stultifying complexities-such complexities as are the speciality of the political process and, as we should recognize by now, are blocking any progress on this question. Roe v. Wade itself was a major demonstration of the butcher's art. With a judicial meat cleaver, seven justices whacked straight through the tangle of state laws that in 1973 forbade abortion. (Only New York had legal abortion.) Getting at these laws was the clear intention of a small but nonetheless determined minority that could never have effected a national policy on abortion without the Supreme Court's help. The matter was too complex, the political process a swamp ready to swallow up the unwary. "Liberal"-or anyway liberal-run-states like Minnesota and Vermont would have come, probably sooner rather than later, to accept some "right to choose" premises. However, lawmakers in conservative states in the South and Midwest would have shut down the debate as quickly as possible. In Texas, I can tell you, Baptist preachers outnumber high-school football quarterbacks, and talk a lot more. Slicing through these Gordian difficulties-which had been prepared prophetically by long-dead advocates of a truly federal system-the Roe majority achieved what no end of political exhortation could have won. Pro-life advocates have ever since focused on purely political means of retaliating against the Supreme Court's handiwork. We are getting on toward the 28th anniversary of Roe v. Wade. It is apparent that the political means have not availed-for just such reasons as I have endeavored to outline in this essay. Politics-notorious as the art of compromise-is an unlikely venue in which to win reversal of a social and moral revolution. There are by now too many voters with a vested interest in preserving that revolution's fruits. They will not easily be argued into mildly handing back those fruits. What do we need at this point? I would venture that what we need is a combined legal-political strategy aimed unashamedly at ending the Roe regime-or rolling it back, if no more than that can be achieved-through judicial measures; through explicit findings of the U. S. Supreme Court that the Constitution after all imposes some limit to one human's control over other humans. A quickening, so to speak, conviction is that nothing else will get the job done-and manifestly the job needs doing. Further, I would suggest that, by diverting political energy to other ends, such as constitutional amendments and funding cut-offs and laws against partial-birth abortion, we squander at least a portion of that energy. Now is it that objectives such as these are unworthy? Nothing could be further from the truth. The idea of surgically collapsing an unborn child's skull, then sucking out its brains-to the extent that such an idea fails to sicken, it shows how far we are gone in cultural decay. Should taxpayer money fund the taking of future taxpayers' lives? That would seem a cruel absurdity (a perception almost never noted by those who vote for distributing the funds). To mitigate an otherwise unmitigated evil is virtuous. But eyes must be kept on the ball. The ball is overthrow of the Roe v. Wade regime-the one thing we hardly ever hear about except from Democrats. "This year's Supreme Court rulings [on partial-birth abortion]," the Democratic platform asserts, "show to us that eliminating a woman's right to choose is only one justice away." Really? Just one more good justice, and bye-bye, Roe v. Wade? You might expect pro-life Republicans to find this very good news indeed. If so, they keep their rejoicings very much in check. One can see why-looking at the matter in a pragmatic sort of way. Don't create an issue that's likely to come back and bite you, is a piece of conventional political wisdom. Would this one come back, with fangs exposed? Most likely. Would that be bad? I think it would be good. The judicial overthrow of Roe v. Wade-or, if nothing else avails, its serious modification-is the only relatively short-term hope for untold numbers of lives. Reformation of the culture, as I have insisted before in this journal, is the long-term solution-the solution that will entrench any anti-Roe decision a future Supreme Court might make. Calling for a Gordian solution is far from the same thing as effecting one. You can say (because this remains a free country) that Roe v. Wade is inexcusably bad constitutional law, but saying so does not persuade judges, who have a way of making up their own minds on legal questions. Indeed, there arises this question: Where do you get the judges who will agree? Don't we get them via the political process? We do indeed. Presidents nominate members of the Supreme Court; the Senate confirms or rejects those nominees. You need the right kind of president, and you need the right kind of Senate. This proves immediately (it might be said) that pro-life folk may not for the life of them-and of others-be excused from the political battlefield. This is undoubtedly true. They may not be. What we should consider excusing them from is facile expectations, of which there are a lot going around. One such is that legislative action is the key to the job. The presidential campaign has written this matter in excruciatingly large.letters. Here in late August there is no saying whether George Bush or Al Gore will win the presidency. If Gore wins, we know what will happen-nothing; at any rate, nothing useful, that is, from the pro-life standpoint. If Bush, on the other hand, were to win, something might come of it. He promises that, if elected, he would name to the Supreme Court judges who strictly construe the Constitution. Note that we are talking here in code. From Bush headquarters there issues no explicit call to overturn Roe; we see instead a wink; i.e., the suggestion that the Kind of Judges I, George Bush, Favor are the Kind Who Won't Take Kindly to Rulings that Overturn the Constitutional Balance. Speculating on these matters, without knowing the outcome of the election, could be deemed a lame enterprise. I deny it. We need to talk of these things whenever possible -for realism's sake. Realism compels us to examine how this prized goal-the extinction of Roe v. Wade-is most likely to be accomplished. Not inevitably but most likely. What the Democratic platform affirmed, the National Abortion Action Rights League's Kate Michelman underscored: the narrowness of the judicial consensus protecting Roe. "With the appointment of just two justices hostile to Roe v. Wade," Michelman told Democratic delegates, "the freedom to choose will be lost. One election is all it takes." (Mr. Justice Blackmun, author of Roe, made the same point in 1992 as the court struck down the best features of a Pennsylvania parental-notification law in Planned Parenthood v. Casey). This degree of stress, concerning prospects for Roe's intact survival, is heartening indeed. It shows the Gordian knot may be fraying. Why would that be? Let us ponder. First, it could be fraying because Roe, as interpreted by its most boisterous backers, e.g., Michelman, comes near to absolutizing a "right" that makes many Americans nervous and others quite ill. (It makes others quite dead, but the Supreme Court as of now views their plight as judicially irremediable). The polls routinely show Americans much more divided on abortion than the Supreme Court revealed itself in 1973. The Gallup Organization, for instance, finds about three fourths of respondents support laws requiring women seeking abortions to wait 24 hours or notify their husbands if any-or, should the women be under 18, obliging them to get parental consent. The National Opinion Research Center, at the University of Chicago, regularly asks respondents "whether or not you think it should be possible for a pregnant woman to obtain a legal abortion if she wants one for any reason." Consistent majorities answer no. There clearly is something amiss in people's minds with the notion of "Hey, so it's a life-big deal." Yet Roe, to all intents and purposes, seats that same notion in the midst of the splendor formerly reserved for freedom of speech and worship. A second reason the Gordian knot may be fraying is that the philosophical consequences of Roe have produced political and even judicial consequences. Roe came along before the court had renounced the acquired habit of doing things in a big way, judicially speaking. Chief Justice Earl Warren, ably seconded by Justices Brennan and Douglas, had helped to form this habit with decisions like Brown v. Board of Education, Baker v. Carr (one man, one vote), and the school-prayer decisions (Abington School District vs. Schempp, Murray v. Curlett). Roe was of a piece with that era's jurisprudence: dismissive of precedent, often high-handed and patronizing. Strikingly, no such decision has come down from Judicial Olympus since Roe: a ruling virtually the last of its kind, albeit with consequences that outshine all other trophies of the era. With Richard Nixon's presidency began an attempt to curb the court through virtually the only effective and simultaneously constitutional method available-appointment of "the right kind" of justices. "The right kind" can be difficult to discern, or, in particular political situations, seemingly not worth the trouble of discerning. It was President George H. W. Bush who appointed, in some sense, the most conservative and most liberal members of the court-respectively, Clarence Thomas, and David Souter. Harry Blackmun was a Nixon judge. John Paul Stevens, nominated to the court by Gerald Ford, and Sandra Day O'Connor, who was Ronald Reagan's first choice for the high court, both voted in June 2000 (Stenberg v. Carhart) to strike down Nebraska's law against partial-birth abortion. "The right kind" of justice, at all events, is normally willing to defer to the judgment of authorities more prepossessing than his own tear ducts, or his family experiences, or the divine light (no, "divine" couldn't be right . . . maybe "the profound perception") that suddenly floods his thought processes. What might happen, with five or more justices persuaded that Roe v. Wade went too far, expressed too much? Might Roe itself fall? That seems a consummation more to be wished than expected. If "swing" justices like O'Connor cannot persuade themselves to uphold laws meant to stop the suctioning of fetal brains, why should anyone expect them to take a deep breath and lay the axe to Roe? Society's lack of a fixed, agreed-upon position on abortion likely forecloses that possibility. Anyway, absent the cultural change to which I have alluded before, and which, in the age of Clinton and Gore, seems for now a ways off. My guess is that judicial moderates, as they edged nearer and nearer the overturn of Roe, would take fright, fearing that a constitutional crisis might ensue were Roe to be knocked out. It might-though many might deem that preferable to a state of affairs wherein government honors and protects the dismemberment of babies. We might have to hope that, rather than dispose of Roe at a single swoop (certainly, in this case, not a "fell" one) the court might begin removing its assumed protections, one by one; narrowing its scope; confining abortion rights to smaller and smaller quarters. It all sounds sub-Gordian: a hunk of knot here, another hunk there. What's this? How about Alexander the Great and the quick cleaving of nasty obstructions? Alexander, it might be remembered, was an autocrat, with a liking for simplicity and directness (more akin to Earl Warren, in that sense, than to Sandra Day O'Connor). Democracy is not set up for the convenience of would-be Alexanders; rather, for their inhibition. It may be that the right image is not swordplay at all. What about football, with its varied strategical combinations? Three yards and a cloud of dust-the political approach-has brought the pro-life movement little so far to write home about. It is time surely to try something new: a combination offense; a cloud of dust and still another cloud of balls flying over the defenders' heads-legal attacks, that is to say, aimed at extending Roe's protections, for once, to the unborn. The importance of politics endures. Without a president to nominate "the right kind" of judges to the Supreme Court, and a Senate to wave such nominees onto the bench, no legal attack on Roe is going anywhere. It may not go anywhere anyhow. Whether it does or not, it seems certain to go further than any human life amendment thus far framed or envisioned. Judicial setbacks and discouragements like Stenberg and Casey weaken rather than strengthen the case for purely political intervention. Politicians love the winning side. Public favor keeps them in business; a lack of it invites career reassessment. Where is the fun and profit, a politician will want to know, in passing laws the courts are going to strike down? Various politicians, driven by principle, will get off the floor and offer their chins for fresh smiting. This is not, however, the common approach. That means the action-the real action-is not on Capitol Hill at all. It is in voting booths and courtrooms, party caucuses and law offices; it is wherever presidential candidacies and judicial nominations are vetted and party policy is shaped. The objective: constant pressure on the Supreme Court, from within and without, to mend its pro-choice ways. And never mind how loudly Kate Michelman howls. There can be no shame in this. "Pro-choicers" glory, if a little uneasily, in their present influence over a diminished Supreme Court majority. What is sauce for pro-choice geese is surely sauce for pro-life ganders. As much as anything else, it is all a matter of insisting, demanding, sometimes pounding a fist on the table. For a good cause, naturally. Alexander would understand that kind of gesture. He would acknowledge from experience that when a thing really needs doing, a fellow better get it done-no hemming or hawing, no checking the precedents, no glances to right or left, beseeching approval.
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