Wednesday, March 08, 2006

Debate on Abortion: Impossibility of

At least as long as the terms of the debate are charcterised by misunderstandings and sloppy thinking. The Guardian today provides a classic example of the problem. Tim has already pointed out the basic problem, which is that the position is continually portrayed as being that Roe v Wade legalised abortion. It didn't. It made abortion a constitutional right, and therefore not subject to State law-making. Abortion until then had been subject to conflicting laws across the States, as of course had many other things (including the death penalty).

If Roe v Wade is repealed by the Supreme Court, abortion will again be an issue determined by State legislatures across the country, unless Congress passes a constutional amendment specifically granting abortion protection.

Is the US public ready for an absolute ban on abortion? Is the supreme court prepared to reverse 30 years of legal precedence? Governor Rounds apparently thinks so.

Well, if the public doesn't like the idea of an absolute ban on abortion then it can vote for parties that oppose it. That's rather the point of democracy. South Dakota currently has only one abortion clinic as it is. The decision has obviously been made that there is more support in the state for a ban than there is for the continued legal status of abortion. That may well be a misjudgement, but it doesn't seem wholly unreasonable to say that it should be the people of South Dakota that should make that call.

The problem for pro-abortionists is that Roe v Wade is a jurisprudential monstrosity. Does the US constitution, written in the 1780s, provide a specific protection for abortion? Obviously it does not. Does it provide for the right to privacy, from which the right to abortion flows? It does not. Does it cover this topic at all? Yes, by saying that those matters not specifically reserved to the Federal power are reserved to the States and to the people. The Constitution, on a literal reading, is crystal clear on this point. To come to a different answer one needs to follow the 'living document' approach beloved of the Democrat Party.

But the difficulty with this is that the Constitution then means only what the Supreme Court decide. This is not, or was not supposed to be, their constitutional function. Their role is to interpret the Constitution, not write it. This is an argument that needs to be understood before the rights and wrongs of abortion itself are even discussed. That it is continually ignored or misunderstood simply puts another obstacle in the path of rational debate.


Anonymous Anonymous said...

You have put your finger on it! Roe vs Wade is in effect the trojan horse for the minority of Americans to impose their view - for good or ill - on the majority.

Without the blanket provisos of R v W there is no doubt that the majority of the states in the Union would ban abortion.

R v W allows pro-choicers to protect the rights of the minority / ignore democratic norms (you pays your money you takes your choice). This makes it impossible to look at R v W outside the wider abortion debate, as the pro-choice lobby have for good or ill lost the battle for the hearts and minds of the people in most of the individual states.

4:12 pm  
Anonymous Anonymous said...

It's not only that the British don't understand the structure of US law. Somehow, I don't think they really understand law at all - did you see this article in the Telegraph? It refers to NRA-types as believing in a literal reading of the American if this was as weird and scary as a literalist reading of the Bible.

9:15 pm  
Anonymous Anonymous said...

Atlantic - I dont think this is a British issue... the question of literalism vs interpretation of the US constitution is alive and well on the other side of the pond as well.

Any quiet troll through the Corner when they are in the mood to debate the 'live' or 'dead' constitution question shows this, hence the joy / pain at Roberts' elevation to SCOTUS for he is a strict constitutionalist... which indicates an anti R v W stance on constitutional as opposed to abortion grounds

9:38 am  

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