Abortion and the Election

George Weigel says the pro-life cause is at stake:

Supreme Court Justice Ruth Bader Ginsburg is 79. Justices Antonin Scalia and Anthony Kennedy are 76. Justice Stephen Breyer is 74. The president elected in November will likely appoint two Supreme Court justices, and may appoint as many as four, over the next quadrennium. If that next president replaces Justices Ginsburg, Breyer and Kennedy with nominees who think that Roe v. Wade (1973) and Casey v. Planned Parenthood (1992) were wrongly decided, there could conceivably be a 7-2 Court majority to overturn (or, in effect, gut) those dreadful decisions and return the abortion debate (and related life-issues questions like euthanasia) to the states. There, the pro-life cause would win some states (likely the majority) and lose some others. With national opinion polls showing a pro-life majority for the first time in a long time, however, the conditions would be right for legally advancing the cause in a dramatic way.

There are two big assumptions here. One is that these judges won't serve into their late 70's and early 80's. I don't think it is particularly likely. Judges often try to time their retirement so their replacement is picked by a like-minded administration. So if a liberal judge was thinking it was time to retire they would have done it before the election so Obama would fill their spot. The fact that they did not means they don't feel that close to retirement. Sure a decline in health could change that but it would surprise nobody if all 4 were still on the bench in 4 years time.

The other assumption he makes is that Romney would appoint pro-life judges. I don't think that is a given at all. Republican administrations have appointed pro-abortion judges in the past. Why wouldn't Romney do it? Think about his convictions and think about the politics. His pro-life convictions are, at best, wishy-washy. Pro-lifers have always been concerned about that. They have good reasons for concern. He is not the passionate and principled pro-lifer that George W Bush was. He is more like Bush Sr in terms of his principles. This his principles are sometimes ignored.

Then you have the politics. Romney loves to appeal to moderates. Would he fight to get a pro-life judge confirmed? He would have to twist some arms and call in some favors. Would he do that over this issue? How concerned would he be that pro-life people would abandon him in the next election? They are partisans. They would be upset but he could do something to get them back onside.

I don't even know that stacking a court with a certain type of judge is a good idea. There are better ways to approach it. One is to change the dominant legal thinking on the issue. Most legal scholars think abortion belongs as an intrinsic human right. So if you are looking for a pro-life judge you are immediately eliminating the vast majority of the most respected legal minds in the country. As long as that is the case it will be very hard to get a pro-life majority on the court. But can that change? Why not? It takes arguments. So we need to make those arguments.

The other way the constitution allows is through an amendment. That is the normal way to fix a supreme court decision that is wrong. Turning every judicial appointment into a political fight over that issue is not healthy for the country. The amendment process is hard but it seems to me the more proper way to change the court's behavior on one question. I think this was tried many years ago. Not sure if it is still out there.

What it would require is getting enough a significant number of Democrats to support it. They technically would not have to be pro-life. All that would be required is that they think the issue should be resolved by elected leaders and not by judges. Once the matter gets back to the state legislatures then those same Democrats could vote for a very permissive abortion law. Some political observers actually think putting the entire abortion question in the political domain might help the Democrats. Who knows? The only question would be whether the abortion law should be decided by an unelected court and imposed on the country. Is that the right process? Especially when their decision is extremely pro-abortion and the majority now identify as pro-life

Anyway, I think the chance for a true pro-life victory is already gone. Neither candidate will do much. Romney will be somewhat better. He will throw the pro-lifers a few bones. Obama might make things marginally worse but only around the margins. Regardless of who wins the reality of abortion on demand  won't change much.

So am I a pessimist? Not really. I do think the grass roots are moving in a pro-life direction. People are queasy about abortion. They want to be pro-life. Most don't vote on the issue yet. Then there are the bishops. They have been more vocal lately. That is huge. So there is reason to be optimistic. They just have nothing to do with this election.