Ditch Roe v Wade?

I'm about ready to get rid of Roe v. Wade. That's easier said than done, of course. The decision has amazing staying power. Despite two decades of Republican Supreme Court appointments designed primarily to get rid of it, it is still there. Given this history, I am not at all sure that it is possible to appoint five Justices who would, at this point, vote to overturn it.

But be that as it may, though, I can't say I would be sorry to see the decision overturned. It is a black hole sitting at the center of our domestic policy, swallowing or at least badly warping everything around it, and I am coming to the conclusion that America might well be better off if it went away.

The debate around the Miers nomination is just the most recent example of this black hole effect. In his Op-Ed piece today, Tom Friedman imagines how that debate might look to an Iraqi:

"The lead Iraqi delegate, Muhammad Mithaqi, a noted secular Sunni judge who had recently survived an assassination attempt by Islamist radicals, said that he was stunned when he heard President Bush telling Republicans that one reason they should support Harriet Miers for the U.S. Supreme Court was because of 'her religion.' She is described as a devout evangelical Christian.

Mithaqi said that after two years of being lectured to by U.S. diplomats in Baghdad about the need to separate 'mosque from state' in the new Iraq, he was also floored to read that the former Whitewater prosecutor Kenneth Starr, now a law school dean, said on the radio show of the conservative James Dobson that Miers deserved support because she was 'a very, very strong Christian [who] should be a source of great comfort and assistance to people in the households of faith around the country.'
'Now let me get this straight,' Judge Mithaqi said. 'You are lecturing us about keeping religion out of politics, and then your own president and conservative legal scholars go and tell your public to endorse Miers as a Supreme Court justice because she is an evangelical Christian.

Robert Bork makes essentially the same point, albeit for very different reasons, in an Op-Ed piece in today's WSJ:

The administration's defense of the nomination is pathetic: Ms. Miers . . . is, as an evangelical Christian, deeply religious. That last, along with her contributions to pro-life causes, is designed to suggest that she does not like Roe v. Wade, though it certainly does not necessarily mean that she would vote to overturn that constitutional travesty.

There is a great deal more to constitutional law than hostility to Roe.

Yes indeed there is. But that is like saying there is more to life than money. Sure, there's more to constitutional law than Roe, but in terms of qualifications to be a Supreme Court Justice, Roe if far ahead of whatever is in second place.

Even more distressing to me, Roe is the great engine of the Christian Right. Where would people like James Dobson and Tony Perkins be without Roe? I seriously doubt if we would ever have heard of them. Now that this monster exists, getting rid of it may take more than elimination of Roe. There are new dragons they want to slay: gay marriage, homosexuality generally, assisted suicide, stem cell research, etc. But none of those has the "legs" that abortion has. And, if the Right ever were successful in getting rid of Roe, I suspect it would generate a significant backlash from the "silent majority" of Americans who, while ambivalent about abortion, nonetheless believe they should not be illegal and who are even less comfortable with the rest of the Christian Right's agenda. In short, my guess is that, deprived of Roe, the cohesion and political power of the Christian Right would begin to wane.

And, what would be the downside? Overturning Roe does not make abortion illegal. It simply leaves the States free to legislate in the area. Abortion would likely remain legal in most of the "Blue States," and even in the "Red States" it will be interesting to see State legislators grapple with the issue once they have to quit sloganeering and take political and moral responsibility for the decision themselves.

Some states will doubtless move quickly to enact abortion bans, and in those states there is likely to be an upsurge in both back-alley abortion deaths and unwanted, uncared-for children. That is sad, certainly. But the battle over abortion is a war and the fact that there are casualties tends to bring the question "is it worth it" into much sharper focus.

And, in the meantime, the Country can get back to being able to think about something other than abortion. That would be a very good thing.