My friend Chad at CCK has a new post in response to my argument against Roe v. Wade. This was the second round in the debate. The first two can be found here at SDP, and here at CCK. This is a substantial and mostly civil exchange (I could do without the "Ol' Perfesser" bit), and I recommend it to our readers who are interested in the issue.
Here is my view from the most post:
Roe created a right to abortion which has no ground in the text, logic, or history of constitutional law. It rests solely on the will of five or more out of nine. This turns every Supreme Court appointment into a political crisis, in which competence and judicial philosophy are eclipsed by the single question of what that judge would do about abortion. No other court decision has created this kind of political dysfunction.
Here is Chad's recent reply:
My argument remains based in the idea that a reversal of the Roe decision will have absolutely no effect on the messy court situation or on the politics of nominations.
A reversal of Roe would create a whole new set of questions that the courts would be asked to answer. The Ol' Perfesser disagrees and I guess that's where we'll have to leave that. But I would reiterate that in the absence of a federal solution in the form of a Constitutional amendment (which will never happen), the courts will remain in the middle of this "messy" battle rather than outside it.
If the Court acknowledged the simple truth, that the Constitution says nothing one way or another about abortion, then abortion rights and the rights of the unborn would be matters for the state legislatures and perhaps for Congress to decide. By definition, the Courts would no longer be "in the middle." Against my view Chad has only one piece of evidence: an entirely speculative argument that some states would try to prohibit their residents from crossing state borders to get an abortion. This is a red herring. There is no reason to assume that the problem would arise, and if it does it still would be a small issue compared to whether or what kind of abortion remains legal in each state.
As it is now, the Supreme Court confirmation process has become a single issue referendum. The last two times around Democrats flirted with the prospect of filibustering any nominee who didn't promise to uphold Roe. What will happen if Bush must make another appointment with a Democratic majority in the Senate? If he is unwilling to turn his constitutional prerogative over to the Senate, the Court appointment process is likely to deadlock. All of this because the right to abortion is protected solely by five out of nine.
Chad turns to the issue that was secondary to the debate, but primary in order of logic and morality.
Is the unborn child a person or not, under the Constitution?" The answer to this question is clearly "no." Some have religious beliefs that tell them that an unborn child is a "person." But "under the Constitution" an unborn child is clearly not a person. And perhaps even more importantly, when we start going down the road that leads us to the point that an unborn child is a person under the Constitution, we are moving into some dangerous territory. Territory that is probably the crux of the abortion debate.
After all, the minute a fetus has the same rights as a "person," is the exact minute that the rights of women are curtailed.
Chad ignores the more important part of my challenge, and I don't blame him. Allow me to restore it:
Consider a perfectly healthy fetus, days away from natural birth. Is this fetus a person or not? Once outside the womb (a mere accident of time in the last days), he or she is clearly a legal person. To kill a healthy human infant a few days after birth is murder, is it not, Chad? So what about a day before birth? The Court says that the same human being has no rights or claim to personhood at that point.
This is the fundamental issue. Chad thinks an unborn child in the situation I describe has no rights under the Constitution. But he doesn't deny the obvious: that it is a child. He thinks that some children have a right to life, while others do not. I hold to my ancient faith on this one, but I do not speak of religious faith. In my case, religion has had no influence over this question. I speak of Abraham Lincoln's ancient faith: that all human beings are created equal in certain unalienable rights. I agree with Ms. Clinton's predecessor, Daniel Patrick Moynihan, who called late term abortions infanticide. It is clear that Chad and I disagree on Constitutional personhood. It is useful to know that we disagree on the founding principles in the Declaration of Independence.
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