Jewish World Review Sept. 25, 2002 / 19 Tishrei, 5763

Terry Eastland

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Abortion, again? The settled but still unsettling law of Roe v. Wade | Abortion is the issue in our politics that won't go away. Consider its appearance last week in the Senate, where the Judiciary Committee held a hearing for President Bush's nominee to the 10th U.S. Circuit Court of Appeals, Michael McConnell.

Mr. McConnell is a widely regarded legal scholar who happens to hold views on Roe vs. Wade, the 1973 case in which the Supreme Court declared a constitutional right to abortion. Mr. McConnell believes that Roe was wrong as a matter of constitutional law and wrong, too, in terms of the policy it endorsed -- an almost limitless right to abortion.

As you might have expected, Judiciary Committee Democrats repeatedly queried the nominee on the subject. Mr. McConnell patiently responded, emphasizing that, whatever he might think about Roe vs. Wade, it is "settled law" and that, as a lower-court judge, he would faithfully enforce it.

Mr. McConnell needs the support of one Democrat on the committee for his nomination to arrive on the Senate floor, where he undoubtedly would be confirmed. For various reasons, he may get that vote and more. But the outlook for Mr. McConnell's confirmation isn't the only story here. There also is abortion, and so there is Roe vs. Wade. And note again what Mr. McConnell said about Roe -- that it is "settled law."

If you aren't a lawyer, you may think it odd to say Roe is "settled." You may think it more accurate to say Roe is "unsettling" -- i.e., disturbing, disordering and worse. You even might pick out a word like "distorting," and you would be right to do that.

Roe declared a constitutional right to abortion, even though such a right is nowhere to be found in the Constitution. Roe said the right of privacy articulated in a 1965 case extended to abortion, even though abortion is a medical procedure that isn't "private" in the ordinary meaning of that word, involving as it does a doctor and, of course, the unborn.

Roe was so thoroughly unsettling that John Hart Ely, a young legal scholar destined later to become dean of the Stanford Law School, was led famously to write: "It is bad because it is bad constitutional law or, rather, because it is not constitutional law and gives almost no sense of an obligation to try to be."

In Roe and a companion case, the court struck down Texas and Georgia laws restricting abortion. But no state had an abortion law that could have satisfied Roe, for none permitted a right so expansive as the one the court announced. Usurping the role of legislatures, Roe unsettled American democracy. Ordinary politics -- and thus the means through which people govern themselves according to their moral convictions -- was mostly disabled when the subject turned to abortion.

It still is. Regulation at the margin has been possible. Of course, it always has been controversial. The resulting litigation has bitterly divided the court, which has been asked at least three times to overrule Roe.

Meanwhile, the single-issue politics spawned by Roe often has narrowed the focus of political campaigns and debate. It also has led to judicial confirmation hearings dominated by queries over abortion -- Mr. McConnell's being a case in point.

How, then, can such an unsettling decision be described as "settled law"? It can be if what you mean by "settled" is that it is law likely to stay law for the foreseeable future. Roe was a 7-to-2 decision, and it survived those three attempts to overrule it, the last coming on a 5-to-4 vote in the 1992 case of Planned Parenthood vs. Casey. Casey explicitly reaffirmed Roe while attempting to shore up its shabby constitutional foundation. Today, thanks to changes in the court's composition since 1993, there probably are no more than three justices who would vote to overrule it.

Mr. McConnell thus was right to say Roe is settled. And he was right, too, to say that, as a circuit judge, he would uphold it. After two centuries of experience, it is very well settled that lower-court judges should follow what the Supreme Court says.

Which isn't to say the Supreme Court always should follow what it once declared. The court is free to change its mind. It is free even to reverse "settled law," since settled law isn't necessarily correct law. The court, given the right case and doubtless with a different membership, could overrule Roe. That is why, when we have the next Supreme Court nominee, abortion surely will return to the hearing room, with Roe's future a dominant issue.

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JWR contributor Terry Eastland is is publisher of The Weekly Standard.Comment by clicking here.

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© 2002, Terry Eastland