ON THE FENCE
In Praise of Waffling
How Roe v. Wade distorts American politics.
BY JAMES TARANTO
The Wall Street Journal, Tuesday, August 31, 1999
Sen. John McCain, whose 1997-98 voting record earned him a 90% rating from the National Right to Life Committee, is a born-again supporter of Roe v. Wade, the 1973 decision that struck down state abortion laws. Or is he?
In an Aug. 20 interview with the San Francisco Chronicle, Mr. McCain declared: "Certainly in the short term, or even the long term, I would not support repeal of Roe v. Wade, which would then force X number of women in America to [undergo] illegal and dangerous operations." Four days later, however, he wrote to the National Right to Life Committee declaring his "unequivocal support" for overturning Roe. Mr. McCain's waffling drew guffaws from pundits and attacks from pro-life and pro-choice groups alike.
But wait. What exactly is wrong with waffling about abortion? Americans do it all the time. Polls consistently show that the majority of voters reject the most extreme pro-life and pro-choice positions. And they're right to do so. It's awfully far-fetched to think that an abortion in the early stages of pregnancy is murder. But it's equally implausible to suggest that a human embryo or fetus is just a mass of tissue and not a human life. Waffling is a natural, even principled, response to these moral intuitions.
The U.S. Constitution offers confused citizens no help in clarifying their views. Neither the Founding Fathers nor their governing progeny ever saw fit to address this question in the nation's charter or any of its 27 amendments. Yet on Jan. 22, 1973, a seven-justice majority of the Supreme Court declared that the Constitution had settled the matter.
Roe v. Wade is perhaps the century's most influential work of American fiction, one that has distorted our politics by spawning a myriad of related fictions. The first of these is that the justices' fanciful legal reasoning actually resolved the issue. Quite the contrary. By removing abortion from the democratic process, Roe set the stage for a Manichaean struggle between advocates of "life" and of "choice," a fight that is almost invariably ugly and occasionally violent. Had the court decided Roe differently, leaving it to the states to liberalize their abortion laws (as several had already done), it's hard to imagine the two major parties would have become polarized over abortion, or that abortion would have been a central issue in every presidential election since 1980.
The notion underlying activists' and the press's obsession with abortion in presidential campaigns--that the president has much say about abortion policy--is another fiction. Most abortion policies are enacted in state capitals, not in Washington. In any case, Roe and subsequent decisions limit the government's discretion over abortion to such marginal matters as Medicaid funding, restrictions on third-trimester abortions, and conditions judges deem "reasonable," such as brief waiting periods or parental notification for minors. And overturning a legal precedent is no easy matter. Even with a Supreme Court majority appointed by Presidents Reagan and Bush, the court has made only minor modifications in Roe.
True, Roe probably would be history if the Senate had confirmed Robert Bork in 1987. But it's reasonable to assume, contrary to Mr. McCain's musings, that abortion would remain widely available even if the court overturned Roe. Far from outlawing abortion nationwide, abandoning Roe would merely turn the matter back to voters, legislators and judges in the 50 states.
A quarter century of Roe has established a cultural precedent that would be even harder to overturn than the legal one. However constitutionally dubious is the right to abortion, voters who have enjoyed it for decades would not part with it lightly. Opinion polls provide ample evidence that Americans support legal abortion, though less fervently and more conditionally than pro-choice activists do.
If Roe v. Wade were overturned, the rigors of democracy would likely force both sides of the abortion debate to moderate their positions and rhetoric. Unable to rely on the Supreme Court to keep abortion legal, pro-choice activists would be foolish to continue expending their political capital defending the indefensible--such as third-trimester "partial birth" procedures, to take the most gruesome example.
Life after Roe would be no picnic for pro-lifers, either. How could they possibly persuade voters to accept a bill or an initiative to define all abortions as murder? Their opponents wouldn't have to shriek about coat hangers and back alleys. They could simply point out that there have been nearly 40 million legal abortions since 1973, and ask: Do you really mean to suggest, sir, that 40 million American women are murderers?
In a world without Roe--a world in which elected officials' views on abortion actually stood a chance of affecting policy--politicians would have to answer to the public at large for those views. Today, they are accountable chiefly to the activists who dominate both parties' deliberations on the matter. This puts pressure on politicians, especially those competing in presidential primaries, to fictionalize their own views on abortion.
George Bush père was pro-choice until he ran for president in 1980; Steve Forbes took a middle-of-the-road position in 1996 but now styles himself the champion of unborn children. On the other side, Al Gore and the Rev. Jesse Jackson espoused pro-life views early in their careers, but have been firmly in the pro-choice camp since their first presidential campaigns. It's possible, of course, that all these men were won over by the power of ideas. But it's hard not to suspect them of opportunism.
Mr. McCain's waffling is refreshing by comparison. His misgivings about overturning Roe, though laughable as a matter of legal analysis, seem to reflect a sincere ambivalence about a difficult moral question. This ambivalence surely is closer to the views of most voters than are the tiresome slogans of pro-choice and pro-life activists.
In this regard, it's telling that smart politicians whose party has been out of power seem compelled to express their moderation on the subject. In 1992 Bill Clinton declared that he wanted to make abortion "safe, legal and rare." And earlier this year George W. Bush said, "I'm a realistic enough person to know that America is not ready to ban abortions."
Will such temperance ever be translated into policy? Certainly Mr. Clinton has taken no action as president aimed at making abortion rare. Most likely the abortion wars will continue, with pro-choicers blocking even the mildest restrictions, pro-lifers persisting in their futile campaign for a constitutional amendment outlawing all abortions, and the waffling majority disgusted by the whole spectacle. Such is the bitter legacy of Roe v. Wade.
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