the abortion distortion

By Phil Lawler ( bio - articles - email ) | Dec 21, 2009

There are dozens of good reasons to have strong opinions about the health-care legislation now pending in Congress. But the abortion issue has consumed the most attention-- just as the abortion issue can dominate debate in presidential and congressional election races, even when there is little probability that any law significantly altering the practice will be proposed, much less enacted. Writing in the Wall Street Journal, James Taranto spots a connection: 

We'd like to take this opportunity to point out that this is an example of how Roe v. Wade distorts American politics. Decided almost 37 years ago, that ruling was supposed to have settled the question of abortion once and for all. Instead, by circumventing the normal political process that produces compromise and consensus, it exacerbated divisions and ensured that disagreements over abortion will scuttle efforts to get other things done.

His point, a good one, is that by bulldozing this mammoth legislation through the Senate without even a pretense of reflection or bipartisanship, the Democratic majority is ensuring that a nasty public debate will continue-- the debate that should have taken place before the votes. In a representative democracy we count on our lawmakers to hammer out settlements for those disputes that we, by ourselves, cannot resolve. The health-care bill now pending in the Senate is not an agreement, not a compromise, not an effort to reconcile differences. It's a power play. If it is enacted, it will be despite the united opposition of the Republicans and the overwhelming hostility of the American public, as measured by every available poll. 

There's another similarity between the two issues. Just as in Roe the Supreme Court discovered a "right" that was nowhere in the Constitution, here the Democratic majority has imputed to Congress an authority that is not among the carefully enumerated powers granted to the legislature by the Constitution.

Still the potential distortion of the American political process by this legislation is not as radical as the damage done by the Roe decision, for three reasons:

1. There is no national consensus on how to resolve our health-care crisis. (There is a consensus that a crisis exists.) In 1973, however, there was a clear consensus against abortion, and all 50 states had laws-- passed through the usual process after public debate-- restricting if not altogether banning the practice. With the Roe decision the Court overturned that consensus.
2. If Republicans can persuade the American people to vote out the authors of this legislation, Congress can repeal the law in the next session, undoing most of the damage. The Supreme Court signaled that any legislative effort to undo Roe would be found unconstitutional, thus smothering any possible effort to re-establish a national consensus.  
3. The Roe decision enshrined a legal principle that is not only imprudent but inherently illogical, and contradicts not only the wording of the Constitution but the natural-law understanding on which that document is based. By claiming that a human person is not always a human person, the Supreme Court short-circuited the logic of American jurisprudence, allowing for-- no, more than that, forcing-- the creation of  countless other legal absurdities. The health-care bill itself is a case in point, actually, because if abortion really were a form of health care, then it should be included in the universal coverage.  We cannot resolve the argument because in 1973 the Supreme Court set up the syllogism with a major premise that eats its own tail.