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Politics : Wesley Clark -- Ignore unavailable to you. Want to Upgrade?

To: calgal who wrote (1050)	1/10/2004 9:42:26 PM
From: calgal	Read Replies (1) \| Respond to of 1414

CAMPAIGN 2004 Roe, Roe, Roe Their Boats When it comes to abortion, Democrats hate democracy. BY WILLIAM MCGURN Saturday, January 10, 2004 12:01 a.m. EST You wouldn't think that a Democratic presidential contender who has consistently championed a woman's right to choose--including partial-birth abortion--could suddenly find his bona fides questioned. But that's just what happened to Joe Lieberman when he foolishly wandered into the no-man's-land of modern American politics: a rational discussion of Roe v. Wade. Leave aside that in his interview with New Hampshire's Union Leader the Connecticut Democrat never questioned Roe itself. Or that his point was the eminently reasonable one that if viability (the time after which a fetus can survive outside the womb) is the measure for when the state can regulate abortion, the "extraordinary advances in medical science" we have witnessed in the past three decades will have implications for where that line is drawn. In short order, Mr. Lieberman found himself under fire for his apostasy, with front-runner Howard Dean accusing him in remarks to the Associated Press of sounding like a . . . Republican. Coming as it does on the eve of the 31st anniversary of Roe--and within days of a federal judge's ruling throwing out a parental-notification law in New Hampshire--the Lieberman kerfuffle over Roe illustrates the curious position that ruling now occupies in the American body politic. It was radical enough when handed down in 1973. But today it has become less a matter of law than a sacred talisman, the one absolute in a Democratic Party that has never explained why if it's OK to reverse a previous Supreme Court ruling on, say, sodomy, this one decision must remain untouchable. Within the pundit class it is common to depict America's continuing battle over abortion (and now, gay marriage) as a irreconcilable clash of moral absolutes: between those who believe that each abortion involves the taking of an innocent human life and those who, with equal passion, believe that the right to an abortion is fundamental to a woman's dignity. That's true enough as far as it goes. But the way these debates play out on the political battlefield points to an even more troubling clash: between those who would work within our democratic system to realize their ends and those who simply rely on courts and judges to impose them. In the case of abortion, of course, this dates to Roe itself, which upended the laws of all 50 states to declare a constitutional right to abortion. But the willingness of judges to substitute their own social views for the democratically expressed views of the American public continues unabated. Most recently it was the federal judge who last week declared unconstitutional a New Hampshire law that would require at least one parent to be notified 48 hours before his or her minor daughter had an abortion. Never mind that majorities of Americans find these kind of restrictions reasonable. Or that even the Web site of NARAL Pro-Choice America acknowledges that in Roe "the court rejected the argument that the right to choose is absolute." That's true in theory. But in practice, judges have been ready to rewrite even themselves to find even the most modest limits unconstitutional. That dynamic has been most evident in the case of partial-birth abortion, a practice that the overwhelming majority of Americans (including many who are stoutly pro-choice) find repellent and that led to more than 30 states passing laws prohibiting the procedure. Justice Anthony Kennedy, who had earlier voted to uphold Roe in Planned Parenthood v. Casey, bitterly noted that in striking down the Nebraska partial-birth restriction the high court was hypocritically turning its back on its own previous ruling. The result was to federalize the issue, with Congress passing its own partial-birth abortion law--followed within hours by three judges imposing restraining orders on its enforcement, thus leaving it in legal limbo. Notice anything here? In each of these cases the pro-life side submitted itself to the arduous process of introducing bills and persuading majorities of state and federal legislators to pass them. And in each of these cases the pro-choice side responds by finding a sympathetic judge or court to chuck the whole thing out with the scratch of a pen. Nor is this undemocratic approach limited either to U.S. borders or legislation. As a recently leaked internal strategy memo from the Center for Reproductive Rights makes clear, the international campaign for abortion rights rests on a "stealth" effort to get these rights recognized in international treaties or court decisions that might then be imposed on otherwise reluctant nations. And what does it say about our own democracy at home that a minority in the Senate that knows full well it doesn't have the votes to defeat a qualified judicial nominee outright will filibuster solely on the suspicion that he or she may have doubts about the constitutional wisdom of Roe? The irony is that, notwithstanding the wishful thinking on the pro-life side and the scares of the pro-choice side, even in the unlikely event Roe were overturned it would hardly signal the end of legal abortion in America. All it would do is return the issue to the states, the majority of which would quickly pass legislation keeping abortion legal. Unfortunately, far from reconsidering Roe our courts appear headed down the same road with gay marriage, ushering it in through the same back door of judicial fiat--with, no doubt, the same poisonous consequences for our national debate. But the most important benefit of returning these issues to the democratic process would not be the outcome. It would be, as Antonin Scalia noted in his dissent in Casey, to give even the losers in the legislative back and forth "the satisfaction of a fair hearing and an honest fight." And maybe even an America where a Democratic candidate for president might speak freely about what he thinks about science and Roe without attracting charges of heresy. Mr. McGurn is The Wall Street Journal's chief editorial writer.