A Simplification Worthy of a Simpleton

This rant is off topic, but it is irritating to find the subject of abortion handled in the pathetic, whiny, and childish manner displayed in Bedroom v. Courtroom, Anna Quindlen's column at the end of this week's issue of Newsweek.

Unhappy with the Alito confirmation being so focused on abortion, Quindlen, a classic liberal, now turns libertarian with respect to abortion. Since she (now) is unhappy with the consequences of the Roe v. Wade decision, Quindlen longs for some imaginary world in which abortion is not a matter for the law but rather one entirely personal. Ironically, it was exactly this type of thinking which led feminists in the 1970s to take their dispute with state abortion laws to the court rather than the Legislature. What Quindlen conveniently ignores is that the result – the Roe decision – has constrained legislatures for three decades and has thus disenfranchised many voters in their attempts at resolving this issue. Yet instead of recognizing feminism’s responsibility for this disenfranchisement, Quindlen gets the vapors because even decades after Roe, lawmakers cannot ignore abortion, much as they might wish they could.

A few Fisks are in order here:

…wouldn't this confirmation process be more illuminating if abortion were taken out of the public realm and put back where it belongs, in the private one?

Abortion never has been in purely the private realm, nor should it be. Physicians, their behaviors, and their treatments are constrained in many ways by law. A personal physician cannot dispense information about even trivial medical conditions without the patient’s consent. Only someone with a brain as fogged or lazy as Quindlen would expect that more important medical matters like abortion, which have public as well as private repercussions, would not be subject to law and regulation.

A mistake has been made in how this deeply divisive political issue is treated. The mistake is that it became a political issue at all.

A “political issue” as opposed to what? Here I see is the same attitude of disdain for the political process and impatience with legislation that brought Roe to trial rather than waiting the years that would have been required (but not decades, no doubt) for 50 state legislatures to each enact their own inconsistent but electorally responsive solution to the abortion question.

Once, abortion was not discussed in public, although it was certainly whispered about plenty in private. But even when it was illegal, it was widespread.

People may have been silent about it, but the law was not. As you say, it was illegal.

As Cynthia Gorney noted in her definitive history, "Articles of Faith," reliable statistics were hard to come by. One national conference held in 1955 put the number of illegal abortions each year at somewhere between 200,000 and 1.2 million. The list of methods was long and various: quinine and Lysol, pencils and garden hoses, slippery elm and castor oil, and on and on and on.

With the rebirth of feminism and the determination to free women from the ties that bound them, both political and social, a movement emerged to change attitudes toward abortion. It became a movement with a schism at its center. One group wanted to reform existing laws. The other wanted to repeal them entirely, arguing that ending a pregnancy was a medical and moral decision, not a legislative one.

And which of those groups went to court? The latter one, who wanted to perform a D&C on abortion law, and had the luck to succeed. Then Republicans had the even greater luck that in their darkest post-Watergate hour the Democratic party lashed itself to this decision. Republicans have prospered ever since, without ever having to take a stand on a realistic abortion law, but instead hiding behind the constraints imposed by Roe.

In 1973, the landscape changed in a way that seemed, at first blush, to be satisfactory for both. The Supreme Court ruled, 7 to 2, that there existed a right to privacy encompassing the right by a woman to have an abortion.

That is a simplification worthy of a simpleton.

The court ruled that their newly discovered right to privacy in this matter was absolute only during the first trimester of pregnancy. This would render unconstitutional all state restrictions on abortion during that part of pregnancy. The court’s decision gave state legislatures some latitude with respect to regulation by law of abortion during the second trimester and much wider latitude during the third. The net effect of this was to invalidate vast amounts of existing state law and force the legislative branch to work out new law within these very permissive constraints the court saw fit to mandate.

But Roe v. Wade had a curious long-term effect. Instead of fostering an atmosphere in which government was agnostic on the issue, it fomented one in which it became activist.

The Legislative branch became activist because legislators push back when their turf is invaded, especially when large amounts of existing law are declared unconstitutional. Furthermore, in many states the electorate demanded that abortion be restricted in order to minimize the practice. This has forced legislatures to push against the limits declared by the Supreme Court.

The result has been a weirdly distasteful amalgam of gynecology and nuts-and-bolts legislation, most notable when members of Congress took to the floor with anatomical diagrams to illustrate the evil of so-called partial-birth abortion.

Distasteful? Perhaps. But these folks are elected every two years and are responding as they see best for their own political futures. It may not be appealing, but it is certainly democratic. Let’s keep our democracy, shall we, and we’ll all just have to learn to deal with the distastefulness of the spectacle. Is that OK with you, Comrade Anna?

It's the kind of wink and nod that has become commonplace. For instance, model laws to make abortion illegal assume penalties for doctors but not for their patients. This either reflects the old belief that women are scarcely sentient enough to be punished, or the new reality that throwing desperate women in jail would provoke a public uproar. Or it reflects the inherent problem with crafting legislation on matters unsuitable for resolution by legislative fiat.

Legislative fiat? Legislative? Ha!

I’m sorry, lady, but the fiats have come from the judiciary at the request of feminists who got the court to do the lawmaking that the elected legislatures would not. The legislators are responsive to the electorate because they are afraid of the electorate which, when sufficiently antagonized, has the power to remove them from their beloved offices and powers. The fiats with respect to abortion were not issued by these elected representatives but by judges with a legislative temperament. These are exactly the sort of judges that conservatives are determined not to appoint today, and thus their strong preference for Alito rather than Miers (which is where your whiny column started, Anna).

We're in a real mess here, trying to fit a profound and intimate matter into a system more suited to tax codes and property issues. It's like trying to solve the mysteries of literature using formulas in math class. That's because abortion is unlike any other matter and pregnancy is different from any other state of being. The situation in which an embryo is permitted to grow over time into an independent human in the body of another is just not comparable to anything else. Yet analogy is the lifeblood of both lawmakers and jurists.

The very purest hogwash. Many other matters equally personal and intimate (marriage, for example) are planted thick with laws and always have been. Don’t like the laws? Then change them, but try persuading a body of elected representatives for a change.

Feminists made their bed with the Supreme Court in the 1970s. Now, Anna, you have to sleep in it.

Article Author: Harry Forbes

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