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TAP on Abortion

[ 0 ] June 27, 2006 |

The American Prospect’s three-article package on abortion rights–including an article by yours truly–is now up and accessible to all; make sure to check it out. Because many of my arguments will be familiar to this site’s tens of longtime readers, just to provoke some discussion let me highlight this part, which I see as the must puzzling aspect of the “If Roe is overturned the issue will pretty much go away” argument:

The evidence is overwhelming that abortion is a divisive issue in the United States because it is divisive, not because of procedural objections to the methods by which policy has emerged.

Abortion centrists appear to take cultural conservatives at their word when the latter say they’d be mollified if only the courts stepped out of the debate. But cultural reactionaries employ anti-elitist rhetoric against any and all institutions they are hostile to, not just against “activist judges.” Consider the anti-gay constitutional amendment in Colorado struck down by the Supreme Court in Romer v. Evans, which was passed as a response to the protection of gay rights by democratically elected city councils. Affirmative action and the recent eminent domain decision in Kelo are also instructive examples: Conservatives are able to mine fury against courts that refuse to overturn the policies of democratically accountable officials. Arguments against “judicial activism” are equally applicable against “elites” and “Congress” and “those bureaucrats down at the state capital.” To believe this resentment would go away if only the courts gave up protecting abortion is to be stuck in a dream-like state in which politics functions as it does in bad sixth-grade civics textbooks.

I really, really don’t understand why people take the jufiscatory rhetoric of cultural reactionaries at face value, particularly when their actions are so transparently inconsistent with their arguments. Lest you think this is a strawman, let me give you my favorite example of the argument that–against all of the empirical evidence on the issue–that the general public evaluates judicial opinions in the way law professors do, from Jeffrey Rosen’s 2004 NYT Magazine article “How to Re-ignite the Culture Wars?”:

Might Roe serve as a cautionary tale for supporters of Lawrence? If any single Supreme Court decision can reinvigorate the culture wars today, conservatives say, the court has just handed it to them on a silver platter.

“It isn’t so much the facts of the case; it’s the reasoning of Kennedy’s majority opinion that was really very offensive to a lot of people,” Phyllis Schlafly, the president of the conservative Eagle Forum, told me. In Lawrence, the defendants were prosecuted for having consensual sex with each other under a Texas law that forbade sodomy by homosexuals but not by heterosexuals. Texas is one of only four states in America that banned sodomy only when committed by gays and lesbians, and the court could have struck down these four laws as a violation of the constitutional guarantee of equal protection, as Justice Sandra Day O’Connor recommended. This would have left states free to ban sodomy, as long as they did so in an evenhanded way, treating heterosexuals and homosexuals alike. Libertarian conservatives insist that they would not have objected had the court simply struck down these four discriminatory state laws.

Social conservatives would have been mollified had O’Connor’s concurrence been the majority opinion rather than Kennedy’s right to privacy argument (oddly, because an equal protection argument would have considerably more radical implications for gay marriage, but never mind). And we know this because…Phyllis Schlafly said so. If you find this convincing evidence, you’re probably a good candidate for the “pro-choice” anti-Roe cult, where a permanent slot on the nation’s liberal op-ed pages and magazines awaits.

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