Bench Memos

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South Carolina Debate


I believe that there were only two responses in yesterday evening’s debate (transcript here) with direct bearing on the courts.  The first was by Rudy Giuliani near the end of his explanation why he supports legal abortion:  “I think everyone on this stage, including most Democrats, could probably very, very usefully spend a lot of time figuring out how we can reduce abortion.  It’s going to take a while for the courts to figure out what to do about this.”


I find this last sentence perplexing and unsatisfactory.  Since Roe, the Supreme Court has made it impossible for the American people to impose any significant restrictions on abortion. In particular, supermajorities of Americans believe that abortion should be illegal in the very circumstances—e.g., the mother believes that a child would interfere with her education or career plans—that actually account for well over 90% of this country’s abortions.  What remains for the courts to “figure out”—other than to overturn Roe and restore abortion policy to the democratic processes?  And how, other than getting out of the way, is it the role of the courts to “figur[e] out how we can reduce abortion”?


A bit of an aside:  Giuliani was specifically asked why his position on abortion wasn’t akin to saying, “I hate slavery, but people can go ahead and practice it.”  Giuliani opened his response by stating, “Well, there is no circumstances under which I could possibly imagine anyone choosing slavery or supporting slavery.”  Of course, there were plenty of folks—slaveholders—who chose and supported slavery.  Giuliani evidently meant that no one chooses to become a slave.  But it is equally clear that human fetuses don’t choose to be aborted.


The second instance bearing on the courts was Mitt Romney’s response to the question, “Tell me what you would say to someone else who lost a wife or a daughter to an illegal abortion, if you named the Supreme Court justice who tipped the balance and overturned Roe v. Wade”:


Well, obviously, a terrible circumstance that you described; something of that nature, it just makes you sick. And I can’t imagine my heart not being rent by virtue of having a circumstance like that presented to me.


I can tell you that I’ve looked at this long and hard. I’ve always been personally pro-life. I’ve taught that to others, it’s been part of my faith. The question for me was: What should government do in this kind of setting? And the Supreme Court stepped in and took a decision, and I said I’d support that decision. And then I watched the impact of that decision as I was governor of Massachusetts. And when we came to debating cloning and embryo farming and we saw human life, human life rack after rack that’s going to be experimented upon and then disposed, I said Roe v. Wade has gone to such an extent that we’ve cheapened the value of human life. And I believe that a civilized society has to respect the sanctity of human life.


And what I’m saying is that, in my view, the people should make this decision, not the court. 


Well put.

Tags: Whelan


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