Saturday, May 02, 2009

The issue that won't go away

Ed Whelan trots out the standard conservative position on the US Supreme Court decision in Roe v Wade --

What will Justice Souter be remembered for? No opinion of his comes to my mind except the joint opinion that he, Justice O’Connor and Justice Kennedy co-authored in 1992 in Planned Parenthood v. Casey. That joint opinion is significant not for its coherence or elegance (it has neither quality) but because it perpetuated Roe v. Wade’s removal of the issue of abortion policy from the ordinary democratic processes — and it resorted to what Justice Scalia aptly called a “Nietzschean vision” of the judicial role in order to do so.

The end result was not, as Souter and company contended, a resolution of the bitter national controversy over abortion, but the continued poisoning of American politics by the Court’s power grab on that issue.

i.e. the Supreme Court "grabbed" the abortion issue. It's a point we've made before, but with another of those depressing "nomination battles" coming up, the US pro-lifers really need to take a look at Ireland to see what happens if their nirvana of illegal abortion and a pro-life position embedded in the constitution comes about. And remember this is in an island where the majority of politicians display no enthusiasm for having legal abortion and where appeals court judges come out of a system that reflects that consensus.

So what happens? You get the nightmare cases related to rape, incest, or direct tradeoffs between the life of the mother and the unborn child, the politicians run for the hills, and the courts have to intervene. And with Britain next door to pick up our sins, the compromise is easy: a right to travel for abortion services. And since the state doesn't want to be in the business of barring all pregnant women from travelling, de facto access to abortion.

And all beginning from an attempt to ban abortion. In short, the US pro-lifers have created this fantasy land whereby if only the US Supreme Court would stay out, the 50 states could sort out the abortion question themselves. If you think US cable news is bad now, imagine the alternative universe where abortion is illegal and one of these tough cases reaches the courts. The call would be for the Supreme Court -- or Congress -- to sort it out.

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