The New Politics of Abortion

By Michael Kinsley

Who said politicians are power hungry? American politicians are greeting the happy news that they are free once again to exercise their democratic prerogatives on the subject of abortion with a reserve bordering on clinical depression. "It's terrible to have this issue back again," New York Assembly Speaker Mel Miller told the New York Times. Others gloomily predict "a mess" and "havoc."

The disaster facing America's state legislators, and potentially its national legislators, is that they may have to address an issue of public policy on which many of their constituents have strong and irreconcilable opinions. This they hate to do and are skilled at avoiding, even though it is what they are paid for. They would far rather pass laws against burning the flag. But there is no Gramm-Rudman-style automatic chopping machinery that can resolve the abortion issue. Nor can abortion be finessed by handing it over to a commission of distinguished experts (although this ploy will undoubtedly be tried).

The politicians have the Supreme Court to thank for the fact that the abortion issue is now a nightmarish gauntlet that has to be run between two ravening mobs. Not because of last week's Webster decision, which opened the door (at least partway) to legislation restricting a woman's right to abortion, but because of the famous Roe v. Wade decision of 16 years ago, creating that virtually absolute, constitutional abortion right, which Webster partially overturned.

Before Roe, abortion was slowly being legalized, state by state, under varying rules, amid moderate controversy. Roe told abortion supporters and opponents alike that it was all or nothing at all, a Manichaean battle in which compromise was impossible. A generation of social-issue conservatives was politicized and mobilized. As a result, today's Republican Party officially endorses a human-life amendment that would not merely return the abortion issue to the states but would constitutionally ban abortion except to save the mother's life.

Meanwhile, many believers in a woman's right to control her own body have become absolutists as well, hooked on the Constitution. They fear that any breach in the constitutional barrier -- that is, any role for the democratic process in settling the abortion issue -- will condemn women to mass death by coat hanger. In April hundreds of thousands marched on Washington in a quixotic attempt to influence the very branch of Government whose independence from public pressure they count on to protect them from the mob on the other side.

You can argue it either way about who will win the coming legislative battles over abortion and what effect those battles will have on politics at large. My bet is that the repeal of Roe (especially if it is completed by the court next year, as seems likely) will awaken and politicize social-issue liberals the way Roe itself energized conservatives 16 years ago. From 1973 until recently, abortion mattered a lot more to the antis than to the pros; that is already starting to change. The new politics of abortion will also put many Republican politicians in the sort of bind Democrats have been in more often in recent years: trapped between the demands of a vocal interest group at the core of their party and the preferences of the moderate voters whose support they need. They cannot abandon the human-life amendment without hell to pay. Now that it matters, they cannot continue to trumpet this extreme position without at least heck to pay. It will be an albatross around their necks. Already it is a pleasure to watch Rudolph Giuliani, a Republican candidate for mayor of New York City, squirm.

In the end, America's abortion policy could end up roughly where it is now: abortion available more or less on demand for the first three months (when more than 90% of today's abortions take place anyway), available only for certain weighty reasons in mid-pregnancy and generally unavailable for the last few weeks. But we would arrive at that sensible arrangement without all the embarrassing intellectual paraphernalia of "trimesters" and "viability" that came out of Justice Blackmun's futile effort, in the Roe decision, to derive a necessary compromise between moral absolutes from first principles. There are no first principles, constitutional or otherwise, that can settle the abortion question once and for all; only politics can do that.

A political compromise could deal with subsidiary issues, such as clinic standards and parental-notification requirements, on their own merits, whereas they have until now usually been cynical attempts to sneak around Roe's absolute constitutional ban. On the one side issue pro-choicers have generally lost -- government funding of abortions for poor women -- they might even find the opposition more accommodating once the general issue is open for debate and compromise. Right-to-life absolutists will find themselves isolated. Appeals to fairness, not to mention more cynical arguments regarding the cost to society of poor women having unwanted babies, will be more likely to succeed when banning government-paid abortions is no longer virtually the only restriction available to those who think unrestricted abortion is wrong.

For a decade and a half, the abortion issue has made extremists and hypocrites of us all -- pro-choicers enshrining trimesters in the Constitution, pro-lifers using an ostensible concern for the mother's health to restrict the mother's freedom of choice. Now we can start being honest again. And with the Supreme Court out of the picture, we can have the arduous but exhilarating democratic experience of deciding an important issue for ourselves.