Mike, maybe Ramesh has a different take on this, but I imagine Judge Bork would say that the pro-life movement is more vigorous in the U.S. because abortion on demand was imposed by the fiat of the politically insulated branch and, because this was done by the Roe majorityโs purporting to construe the Constitution, that makes it virtually impossible to reverse (other than by getting the Court itself to reverse it).
The movement might well be less vigorous if the issue were returned to the political process from which it should never have been usurped. But (a) that would be because there would be less abortion and more strict regulation of abortion than when legal elites were calling the shots, (b) the effect of such regulation would alter the way society viewed abortion (i.e., not as an iconic โrightโ but as a condemnable practice), and (c) in fact, it might not lessen the vigor of the pro-life movement at all, at least in the short-term, as the debate over abortionโs legality and regulation raged in the 50 states. (The vigor of the movement to preserve traditional marriage is pretty strong even though the courts have not usurped the issue to the degree they did with abortion.)
For those interested, I reviewed Judge Borkโs wonderful new book, A Time To Speak, for The New Criterion back in February. A section of the review details
a 2003 First Things debate over abortion with Professor Nathan Schlueter, a right-to-life theorist from St. Ambrose University. As a citizen, Bork is passionate about the protection of unborn life. Mincing no words, while drawing the distinction between abortions and such official action as capital punishment, he bluntly says, โAbortions are killings by private persons.โ Nevertheless, the law is reason shorn of passion. Where the law is concerned, Prof. Schlueter, who โinventsโ a complete constitutional prohibition of abortion based on a wayward reading of the Fifth and Fourteenth Amendments, is in Borkโs estimation a kindred spirit of Justice Harry Blackmun, the Roe author who โinventedโ abortion rights: โThough neither would care to admit the relationship, they are brothers under the parchment.โ
Here, it is critical to draw the distinction, as Bork has throughout his career, between law and politics. His argument is the very opposite of the craven Mario Cuomo demurral: the familiar refrain, particularly from Catholic politicians, that, though personally repulsed by abortion, they must resist imposing their private morality on constituents (spluttered as they blithely impose articles of leftist faith on all manner of metaphysics, from climate change to affirmative action). For Bork, the political arena, with elected officials taking accountable positions, is precisely where abortion belongs. It is the courtroom where the imposition of personal moral precepts must be resisted.
Even though there had long been arguments about the point at which human life begins, the Framers did not address them, and โthose who adopted [the Fifth and Fourteenth] Amendments addressed only the legal rights of persons who had been born.โ Consequently, it is โabsurdโ to claim these provisions protect the unborn from being deprived of life by abortion:
I think it clear that the Constitution has nothing to say about abortion, one way or the other, leaving the issue, as the Constitution leaves most moral questions, to democratic determination.
He would overrule Roe, but then return the question where it belongs: โto the moral sense and democratic choice of the American people.โ
Far to the contrary of his academic critics, Borkโs is a Constitution for a bold, confident, self-determining nation. . . .






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