January 22 brought us the 30th anniversary of Roe v. Wade, that barbaric relic of 20th-century jurisprudence. Justice Harry Blackmun labored mightily to establish a federal constitutional right to abortion. This was no small task: The Constitution, after all, made no mention of the subject, and prior to the 1960s, no one dared argue that it could plausibly be interpreted to establish such a claim.
Undeterred by these inconveniences, Blackmun proceeded to invent what he could not find in constitutional text or tradition. The previously undetected and unremarked right to abortion, he argued, had been lurking all along within a broader right of privacy, which, in turn, had been incorporated by the due process clause of the Fourteenth Amendment. But the right of privacy, itself a recent jurisprudential confection of the Court’s own making, had no more respectable constitutional pedigree than abortion itself. Never mind. Blackmun’s jerry-rigged rationale provided the fig leaf, enabling six justices to pretend that their decision was rooted in law.
The flaws in Blackmun’s argument have been exhaustively cataloged in countless articles, books, and legal briefs, to which successive majorities on the Court have been utterly indifferent. That is because Roe and its progeny are only incidentally, not to say accidentally, about constitutional text and history. They are first and foremost the expression of the justices’ own ideological preferences masquerading in the forms of law. Justice Byron White’s dissent had it just right: Roe was an exercise in “raw judicial power.”
Defects in its reasoning aside, the majority was right about one thing. They had every reason to believe that their decision would be applauded by so-called enlightened opinion. Abortion-on-demand became secular scripture for the intellectual elite, who bring to its defense rhetorical fire and brimstone of a sort that would shame the most passionate fundamentalist preacher.
Americans generally share little of that enthusiasm. While expressing support for “the right to choose” in principle, they are far more conservative and discriminating in judging how and when the principle gets applied. University of Virginia sociologist James Davidson Hunter troubled himself a few years ago to review polling data on the subject and found that 60 percent of the public opposed abortion in roughly 80 percent of the circumstances in which it was performed. Subsequent polls not only confirm Hunter’s finding but also indicate that support for abortion has softened measurably over the past decade.
Congress, an accurate bellwether of public opinion over the long run, has with rare exceptions voted consistently to constrain rather than advance abortion insofar as Supreme Court rulings will permit. The same has been true of legislatures in all but the most liberal states. But whatever the state of public opinion, legislatures can do only so much as long as the Supreme Court remains wedded to Roe’s ideology. The legislative bans on partial-birth abortion are a case in point: Despite public support in the 80 percent range, these prohibitions have been uniformly rejected by federal courts.
Liberals are acutely aware that support for abortion cannot be sustained in the long run without the support of the federal judiciary. That is why Democrats on the Senate Judiciary Committee have been so adamant in blocking President Bush’s pro-life nominees to lower federal courts. Their opposition has been weakened by last November’s elections, but not fatally so. The real test will come in the event of a Supreme Court vacancy. Rumors abound these days concerning the possibility of Chief Justice Rehnquist’s retirement at the end of the current term. Should that come to pass, batten down the hatches. If you thought the vicious assaults against Robert Bork and Clarence Thomas were beyond the pale, just wait until the liberal propaganda machine spews its venom at the chosen nominee.
President Bush’s advisers are even now preparing a list of suitable nominees, all of whom no doubt will be superbly qualified. The struggle, however, will not be about legal qualifications or even character. There will be sidebar skirmishes about such hot-button issues as affirmative action, but the main battle will occur on the abortion question, on which a conservative nominee will be accused of the most hateful things. The president needs to gird himself for this struggle now. It may cost him precious political capital, but as the battle cannot be avoided, he has no choice but to spend it.