Federalism vs. Roe. vs. Wade by Ron Unz
Wall Street Journal, Wednesday, June 16, 1999
Republican presidential front-runner George W. Bush has now announced that he will not impose an abortion litmus test on his Supreme Court nominees. Such views may also be shared by most of Mr. Bush’s leading rivals, thus transforming abortion into a word whose pronunciation is silence.
The wide consensus of reporters, pollsters, consultants and major donors is that the abortion issue helped drag Republicans down in 1996 and 1998. Today, most major Republican leaders seem resigned to treat abortion as the cross they must bear, too important to party activists and primary voters to be completely abandoned, but too unpopular among the general public to be honestly embraced. Ambitious Republicans are encouraged to adopt an agonized and compassionate mien, while saying as little about the subject as they can.
There is, however, another way for the Republican Party, and indeed for the nation as a whole, to deal with the vexing question of abortion. But the solution does not lie with the president or the Supreme Court — even if, for the time being, the problem does.
A few years ago, when renewed debate over the right to abortion was emerging as a national issue, pro-choice neoliberal Mickey Kaus, writing in the pro- choice, neoliberal magazine The New Republic, explained how after years of supporting Roe v. Wade he finally decided to read the decision for himself. As a Harvard Law graduate, he concluded that those conservatives who argued that any supporter of Roe should be denied a place on the high court were understating the case; rather, any supporter of Roe should probably have been flunked out of law school. Justice Harry Blackmun’s ability to find a constitutional mandate for a national policy of abortion-on-demand in the “emanations of the penumbra” of the Constitution simply ranked as the most arrogant and absurd example imaginable of judicial overreaching.
The point is not merely a legalistic one. Much of the reason for the especially virulent nature of the abortion debate in the U.S. is that our current national policy is rooted neither in legal precedent nor in the give- and-take of the political process, but was instead created from whole cloth by a handful of elderly judges. Americans are far more opposed than Europeans to abortion, yet under Roe our abortion laws are among the loosest anywhere.
Such a mismatch between public policy and the public mind is poisonous to a democracy. Abortion foes have no viable political outlet to change the law. Instead, they are forced either into supporting purely symbolic efforts such as banning all abortion through passage of a Human Life Amendment to the Constitution, or else nibbling at the edges of the issue through laws on parental consent or partial-birth abortions. After decades of such frustration, the most extreme activists have begun to turn to violence.
The tragedy of this situation is that of all countries the U.S. is best equipped to manage apparently irreconcilable ideological differences. Thanks to our federalist political structure, the country has been able to accommodate a level of ethnic, cultural and religious diversity that under different institutions would have almost certainly led to Balkan-style violence.
Thus in libertine Nevada gambling is the mainstay industry and prostitution is legal, but both are unlawful abominations next door in Mormon Utah. The notion that the laws on an issue as emotionally charged as abortion must be rendered identical across all cultural communities from Greenwich Village to rural Mississippi is a recipe for endless conflict. Consider the political consequences that would result if our Supreme Court suddenly discovered an absolute constitutional right to prostitution throughout America.
The pragmatic solution to the abortion question is a healthy dose of federalism. Overturning Roe v. Wade would not mean the end of legal abortion in America; rather, it would allow each state or even each local community to reach its own equilibrium on the issue. In the process, we would not only be reaffirming that the words of our Constitution actually mean what they say, but invigorating the democratic process throughout the entire country. A recent public statement by 22 Republican members of the California legislature — including those most ardently pro-life — supporting a federalist solution gives hope that this approach may be gaining political momentum, at least on the right.
For years, critics of current abortion laws have pinned their hopes on the Constitution, expecting either a Supreme Court decision or a constitutional amendment to settle the issue irrevocably in their favor. After years of fruitless effort, it’s high time to try a better approach. Those Republicans who wish to find a moderate way of speaking about the abortion issue without being buried by it should take heed.
Mr. Unz, a Silicon Valley software entrepreneur, is author of Proposition 227, the successful California initiative to limit bilingual education.