The Political Spectrum

Richard Cohen has a startling op-ed in the Washington Post. Cohen is pro-choice, but he does not believe that Roe should continue to be upheld.

That shift in sentiment is not apparent in polls because they do not measure doubt, only position: for or against. But between one and the other, black or white, is a vast area of gray where up or down, yes or no, fades to questions about circumstance: Why, what month, etc.? Whatever the case, the very basis of the Roe v. Wade decision -- the one that grounds abortion rights in the Constitution - strikes many people now as faintly ridiculous. Whatever abortion may be, it cannot simply be a matter of privacy.

[edit]If a Supreme Court ruling is going to affect so many people then it ought to rest on perfectly clear logic and up-to-date science. Roe , with its reliance on trimesters and viability, has a musty feel to it, and its argument about privacy raises more questions than it answers. For instance, if the right to an abortion is a matter of privacy then why, asked Princeton professor Robert P. George in the New York Times, is recreational drug use not? You may think you ought to have the right to get high any way you want, but it's hard to find that right in the Constitution. George asks the same question about prostitution. Legalize it, if you want - two consenting adults, after all - but keep Jefferson, Madison and the rest of the boys out of it.

Conservatives - and some liberals - have long argued that the right to an abortion ought to be regulated by states. They have a point. My guess is that the more populous states would legalize it, the smaller ones would not, and most women would be protected. The prospect of some women traveling long distances to secure an abortion does not cheer me - I'm pro-choice, I repeat - but it would relieve us all from having to defend a Supreme Court decision whose reasoning has not held up. It seems more fiat than argument.

For liberals, the trick is to untether abortion rights from Roe. The former can stand even if the latter falls. The difficulty of doing this is obvious. Roe has become so encrusted with precedent that not even the White House will say how Harriet Miers would vote on it, even though she is rigorously antiabortion and politically conservative. Still, a bad decision is a bad decision. If the best we can say for it is that the end justifies the means, then we have not only lost the argument - but a bit of our soul as well.

What gets lost in the Roe debate is that while pro-lifers certainly abhor the moral consequences of the decision, many of us are just as angered by the inadequacies of Roe from a constitutional perspective. Unfortunately, the Court compounded its error by an even more poorly reasoned plurality decision in Casey.

In short, the Court's abortion jurisprudence is awful, and as Cohen aptly demonstrates, even pro-choicers can acknoweledge its putridness. The decision ultimately belongs to the States. Let us debate the merits of abortion there. I concede that my side will be on the losing side more often than not, but at least the debate take place where it should.