Occasionally Conservatives repeat themselves over and over again and it seems that no one is listening or at least the point is not fully appreciated. Then, when one least expects it, the message leaks through. For this we have, the reliably Left-wing Richard Cohen, a pundit with the Washington Post, to thank. Conservatives have often said that the issue of abortion is really two issues that have been treated as one. The result of the failure to separate these issues is confusion, anger, and a judicial nomination process for the federal courts that has been deformed into a political slug fest, complete with character assassination and rhetorical hyperbole.
The first question is what status and what protections ought to be afforded a fetus. At what point from conception to birth should a fetus be accorded rights associated with personhood? The second question is what does the US Constitution say, if anything, about a right to an abortion.
The Conservative judicial position has always been that Roe v. Wade was wrongly decided as a matter of law. While there is certainly a right of privacy in the Constitution, especially as embodied in the Forth Amendment’s protections “against unreasonable searches and seizures,” there is no right to procure whatever medical services one is willing to pay for. The jurisprudence that gave us Roe v. Wade was entirely arbitrary. There is no explicit or implied right that prevents state governments from regulating the circumstances and conditions of medical procedures. Indeed, states and the federal government do so all the time, with nary a Constitutional whimper.
There are requirements on the length of hospital stays for certain procedures and limits on what drugs doctors can prescribe. Decisions on medical procedures are not the exclusive province of doctors and their patients. These requirements may be wise or foolish. They may not conform with a libertarian minimalist approach to government intrusion, but medicine is a business like others, provided to the general public, and there is no constitutional impediment to regulation. In Roe v. Wade the court simply decided that abortion ought to be legal and barely gave the Constitution a serious thought before the Court legislated its preferences.
Now even some Liberals are willing to appreciate the nature of the two arguments. As Cohen now concedes, the logic of Roe v. Wade “has not held up … It seems more fiat than argument.” Cohen has come to appreciate that the question of abortion ought to be decided by the public and not dictated by Courts. Conservatives take heart, Apparently, he has been listening. Cohen is self-described as pro-choice, and finally sees the necessity of making the case for abortion to the public, to gain the legitimacy afforded from the assent of the governed.
If Roe v. Wade were overturned and states were left to their own devices, most would permit abortions of some type, particularly in the first trimester. Later-term abortions would be more regulated and minors would probably have to obtain the consent of a responsible adult (parent, guardian, or judge) to obtain an abortion. There are some states that would be far more restrictive. Under such a change, pro-abortion groups could devote their resources to providing transportation for women in states with restrictive abortion laws to travel to states where abortion is liberalized.
The first and primary question about abortion, the status of the fetus, has not been debated. The arbitrary decision in Roev. Wade suspended substantive debate on the core issue of the status of a fetus and focused the public on Constitutional arguments and on extraordinary efforts to influence the selection of federal judges. The past thirty years could have been spent in a serious national debate conducted state-by-state, a thoroughly deliberative process. Instead, we have acrimony and a damaged Constitutional jurisprudence. With the prospect of a Court tilted to the Right, the Left is now beginning to appreciate that it will have to appeal to the public and will not be able to foist a decision upon them.