- - Wednesday, June 19, 2013


Forty years after the U.S. Supreme Court attempted to settle the abortion debate once and for all, anxious activists on both sides of the homosexual-marriage debate are waiting with bated breath for high court rulings some hope will settle the future of marriage. The history of abortion law and politics, though, illustrates compellingly that judge-made solutions to vast questions of social policy are doomed to failure. If the Supreme Court is paying close attention to what its rulings in Roe v. Wade and Doe v. Bolton (1973), and Casey v. Planned Parenthood (1992) have done to its authority and prestige, it will take a pass on trying to remake the meaning of marriage.

Consider just how unsettled abortion law remains in the United States. Justice Harry Blackmun and his six majority colleagues attempted to craft a decision that, from conception to birth, made the mother of an unborn child the arbiter over whether that child lives or dies. Overnight, the laws of 50 states — conservative, moderate and liberal — were swept away in favor of a legal regime previously unknown to the planet’s legal traditions. The lack of constitutional foundation for the court’s profoundly legislative ruling — the creation of a “trimester” scheme of increasing regulation, but no prohibition — was immediately noted by scholars left, right and center.

Almost two decades later, invited to reconsider its ruling in two major cases, Webster v. Reproductive Health Services and Casey v. Planned Parenthood, the court shifted its analytical ground to a “weighting” test under which the primary question, subjective to be sure, was whether a law regulating or prohibiting abortion imposed an “undue burden” on the woman’s decision to seek an abortion. Openly appealing to regain the respect of a populace that was coming to see the court as thinly robed politicians, the splintered Casey plurality announced that “the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.”

Needless to say, the American people were not persuaded. The court’s own weight was not enough to secure an end to the nation’s search for a just and workable solution to questions of profound importance: Who is human, what duty do we owe to any human being with respect to the preservation of his life, and how do we fulfill that duty without descending into either barbarism or fascism? In short, the issue of abortion was and is far too important for a free people to hand over to any nine men and women. Roe and its progeny are, among many other things, profound insults to the process of reasoned and democratic debate. They declared all manner of compromise and all means of achieving it virtually dead on arrival, embittering opponents and polarizing the populace.

The result? A national division that will not and cannot quit. In 2011 and 2012, states passed a record number of pro-life laws, some unprecedented in their reach. States banned abortions performed merely because the unborn child happens to be female; Arizona banned abortions motivated on the unborn child’s race; Arkansas banned abortions that take place when the unborn child’s heartbeat is detectable, an event that transpires in the first few months of pregnancy; North Dakota, banned abortions at 20 weeks’ gestation. States enacted more funding restrictions in response to the Obama administration’s Affordable Care Act. In the next few weeks, the U.S. House of Representatives is likely to pass its own law limiting abortions after 20 weeks of pregnancy.

To be sure, such sustained resistance to Supreme Court decisions is rare. Besides abortion, the American people have rejected the court’s solutions on slavery and segregation. Many other rulings, controversial at first, like the Miranda decision, have been incorporated firmly into the nation’s legal framework. Why is marriage more like the former issues? The answer lies in the magnitude of the institution at stake and the degree of disruption a court ruling remaking it would entail. In the abortion cases, it was at least true that at some point in our history abortions were not illegal prior to quickening, the time when evidence could be adduced that a viable pregnancy existed.

Can anyone reasonably say that the concept of men marrying men and raising children conceived through surrogacy (one result of recognition of homosexual marriage) reflects “a common mandate rooted in the Constitution”? Cannot reasonable people disagree over the wisdom of such a radical change, a change rooted in the salons of modern academe and not the canons of law, much less American constitutional law?

The truth is that it does not lie within the power of the Supreme Court to “resolve” the marriage issue any more than the court could resolve controversy over the value of human life. Debate and democracy may be messy, but they are the tools of a free people. This summer, the court takes those tools from our hands at risk of further grave damage to its influence and prestige.

Chuck Donovan is president of the Charlotte Lozier Institute, the research arm of the Susan B. Anthony List.

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