Let me start off by saying I'm a liberal. I've donated to MoveOn.org (not recently), walked precincts, taking my daughters, to help get out the vote, and am glad to see Howard Dean as chairman of the party.
I also believe that abortion should be legal.
With that preface, I have also believed for the last 20 years that Roe vs. Wade is wrong and should be overturned. And here is why.
First, we are a nation of laws. And equally important we are a democracy, not a benevolent dictatorship. To be a democracy under the rule of law it is essential that the courts do not make the law but instead interpret the law.
Very simply, Roe vs. Wade was an incredible reach of judicial activism. I've discussed this with numerous lawyers, most of them liberal, and I have never had one argue that it was a clear legal decision - just that it was a "necessary" decision.
But when the judicial system shortcuts the political system, we are no longer a democracy. We are no longer a nation of laws. Instead we are a benevolent dictatorship.
Second, when to allow abortions is a political decision. It goes to the core of each person's beliefs, their religious beliefs and their moral beliefs. A decision like this must, in a healthy democratic society, be made in the political arena.
By shortcutting this process the court not only pulled this from the political decision making process, but it also stopped the country from working through it's beliefs on this subject. Instead of working it through, the court decision poisoned the political discussion as it allowed both camps to retreat to extremist positions because their political positions were irrelevant. (Operation Rescue might never have existed if this was left as a political decision.)
Third, it hurt democracy in other areas. I find it unlikely any state would have put an amendment on the ballot outlawing gay marriage if not for Roe vs. Wade. It's Roe vs. Wade and the legal efforts made in numerous states to force the legalization of gay marriage through the courts that made many feel the amendments were necessary to stop judicial activism.
Without this concern, its unlikely the amendments would have occurred. Instead people would have argued this out and worked it out and most likely over the next 10 years gay marriage would be slowly legalized throughout the country. However, with the existing amendments, it will now require more than a majority in many states to legalize gay marriage. Roe vs. Wade, and the approach of gaining rights through the courts instead of the legislature, has delayed the adoption of gay marriage.
Fourth, Roe vs. Wade has been devastating for the Democratic party. Because the legislature has no control over abortion, candidates can get elected who have a very conservative agenda that includes support for absolutely no abortions. And their abortion stand is irrelevant to the vast majority of the electorate.
However, if legislators did control who could have an abortion and when, suddenly their stance on this issue becomes very important to a very large segment of the electorate. Instead of being able to pay lip service to this issue, the Republican candidates would have to try to appeal to a majority of the voters (who want at least some form of legalized abortion) as well as their base (many of whom view any form of abortion as totally unacceptable).
This would be as wrenching for the Republicans as civil rights was for the Democrats. And it would force the Republicans to face up to a deeply moral question that they have so far been able to dance around.
And finally to those that say the right to abortion is so important, that in this case judicial activism is called for I ask - are you willing to accept also that the court could find that a fetus is human at the point of conception and that no law could ever make abortion legal? The sword cuts both ways.
Compare this to the civil rights struggle. That struggle was fought primarily in the legislature. The courts were used to enforce existing laws, not to create new laws or rights. And with that long political struggle, came closure. Race is still an issue in this country, but as a country we have come to the conclusion that racism is wrong and we are moving forward.
It's time to finish working out how we want to handle abortion as a society. And to do that the decision must be moved back to the legislature.
