Bench Memos

Michael Kinsley on Abortion

Michael Kinsley’s op-ed today makes a number of interesting observations about the politics surrounding Roe v. Wade, including the Left’s highly selective regard for precedent:

“[Some liberals] emphasize that social policies can start with a Supreme Court ruling and develop into deeply rooted national values. That happened with Roe and abortion, they would say, while the opposite happened with Bowers and laws against homosexuality. Of course, if a policy really has become a deeply rooted national value, then the once-controversial Supreme Court ruling is superfluous, because democracy will protect such a value. The fear that motivates the Roe panic is that the rights at stake are not deeply rooted. Or not deeply enough.”

Kinsley observes: “Abortion is the most important issue in American politics. It shouldn’t be.” And he complains that “there is no [genuine] abortion debate.” Yet he stops curiously short of openly acknowledging that it is the Supreme Court’s judicial power grab in Roe—and the perpetuation of that unconstitutional usurpation of the democratic processes over the past 32 years—that explain the state of affairs he decries. As Justice Scalia explained in his 1992 dissent in Casey:

“It is no more realistic for us in this case, than it was for [Chief Justice Taney] in [the Dred Scott case], to think that an issue of the sort they both involved—an issue involving life and death, freedom and subjugation—can be ’speedily and finally settled’ by the Supreme Court, as President James Buchanan in his inaugural address said the issue of slavery in the territories would be.… Quite to the contrary, by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.

“We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.”

As I explained in my Senate testimony earlier this year, it is well past time for all Americans, no matter what their views on abortion policy, to recognize that the issue of abortion should be restored to its rightful place in the democratic process.

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