John G. Roberts Jr. will be confirmed and become chief justice — though some of his opponents noisily insist they don't trust him to leave Roe vs. Wade and abortion rights undisturbed. Instead of heckling Roberts, they ought to ask themselves why abortion rights should be up to the Supreme Court in the first place, and not to the American people and their elected representatives.
The abortion issue is a catastrophic wound in U.S. cultural life. It has inflicted unending battles on American society ever since the Supreme Court seized control of the issue from state legislatures in 1973 — in one of the grossest power grabs American democracy ever faced.
Young people pondering U.S. democracy today might easily conclude that all really important laws must be decreed by the high court.
We could heal the abortion wound, end the battles and reaffirm the integrity of American democracy if we had the guts to use the Constitution's own mechanism for introducing big, permanent changes to American law. We should get Congress to propose and the nation to ratify a constitutional amendment.
Ever since the 7-2 Roe decision, supporters of abortion rights have been nervous — with good cause. The right to have an abortion could be abolished by a one-vote majority of the Supreme Court. It was only created in the first place because of the Make-a-Wish theory of jurisprudence. The American people had never written it into the Constitution, but the justices (closing their eyes and wishing hard) discovered it there anyway.
Some people still believe that abortion rights are present in the Constitution under cover, hiding behind the bushes. They argue that the Constitution includes an implicit right to privacy, which implies the right to an abortion. But abortion is a strictly private act only if you believe that the fetus is not a person. Otherwise it involves two people and amounts to murder — and privacy is irrelevant.
And despite having triumphed in the Supreme Court, abortion-rights proponents are still anxious. The right to an abortion is continually in jeopardy. In every election, liberals are required to vote for a president and senators who will nominate and confirm justices, who in turn will (probably) not vote to overturn Roe. Rube Goldberg democracy is the natural complement to Make-a-Wish jurisprudence.
The solution is to take abortion out of the court's hands and give the issue back to the people. The court could dump Roe and let state legislatures make abortion law, as they used to. But this is not going to happen any time soon. A stable majority of Americans has backed legal abortion for years. (Majorities also favor restrictions after the first trimester and parental notification for minors.)
Overturning Roe, moreover in the face of majority support, would be a spectacular gesture for the Supreme Court, which no longer likes making spectacular gestures.
How can democracy reassert itself given American political reality? Congress could propose, and the nation could ratify, a two-part constitutional amendment.
Part one would legalize abortion with suitable restrictions. Part two would nullify Roe and reaffirm that only Americans and their elected representatives have the power to make law in this nation. All courts would be implicitly instructed by this slap-in-the-face clause to butt out of law-making.
Obviously, pro-abortion liberals would gain if such an amendment were ratified. Anti-abortion conservatives would too — not in their fight against abortion, perhaps, but as Americans. They can live in a nation where abortion is legal and democracy is under a cloud, or a nation where abortion is legal and democracy has been resoundingly reaffirmed.
Abortion poses vitally important problems, but liberty and democracy are even more important. If we lose them, we lose everything — including all possibility of making things better in the future.
To pass a constitutional amendment is hard, but plenty have been approved in short order. Direct election of senators (proposed 1912, ratified 1913), women's suffrage (proposed 1919, ratified 1920), term limits for the president (proposed 1947, ratified 1951), abolition of poll taxes (proposed 1962, ratified 1964), voting at age 18 (proposed and ratified, 1971).
The ratification process would give conservatives a chance they haven't had for years, to make their case to a public that is empowered to act. If the amendment were ratified, which would be likely, abortion rights would at least be backed by the legitimate authority of the people instead of the usurped authority of the court. Democracy would have been vindicated. When the people finally have a chance to speak, this wound would finally have a chance to heal.
