Originally Published: August 8, 2005 11:17 p.m.
When T.S. Eliot wrote that “humankind cannot bear very much reality,” he could have been talking about the abortion debate.
As abortion-rights advocates try to make their case against the nomination of John Roberts, they have abandoned fact-checking in favor of myth-making.
The myths in this case are two. The first is that Roberts is a frothing extremist on the subject of Roe v. Wade, the 1973 Supreme Court decision creating a constitutional right to abortion. The second is that the American people – the “pro-choice majority” – staunchly support that ruling and everything it stands for.
The evidence that the nominee is a wing nut stems from positions he took during his years in the White House under Ronald Reagan and the Justice Department under George H.W. Bush. In one 1990 case, Roberts signed a brief arguing, “The court’s conclusion in Roe that there is a fundamental right to an abortion ... finds no support in the text, structure or history of the Constitution.” Another time, he noted a “serious problem in the current exercise of judicial power,” as illustrated “by what is broadly perceived to be the unprincipled jurisprudence of Roe v. Wade.”
We hear that only an ultraconservative, anti-feminist zealot could say things like that. In fact, you don’t have to venture into the right-wing fever swamps to encounter such criticism. You can find plenty of it without leaving impeccably liberal precincts.
Former Watergate prosecutor and Harvard law professor Archibald Cox once wrote, “Neither historian, nor layman, nor lawyer will be persuaded that all the prescriptions of Justice Blackmun are part of the Constitution.” The late Stanford law school dean, John Hart Ely, said the opinion “is not constitutional law and gives almost no sense of an obligation to try to be.”
Harvard law professor Laurence Tribe, who argued Al Gore’s post-election case before the Supreme Court in 2000, has said of Roe that “behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.” Even Justice Ruth Bader Ginsburg, who Bill Clinton appointed, criticized Roe v. Wade before joining the court. In 1985, she called it an act of “heavy-handed judicial intervention” that “ventured too far.”
What’s striking is how many supporters of legal abortion have trouble justifying the way the court resolved the issue. So when Roberts faults the court for its overbearing presumption and lame reasoning, he’s not on the fringes of the debate – he’s smack in the middle.
There’s no way to know if Roberts would vote to junk the 1973 decision. If the court were to do that, though, it merely would let the electorate put its conflicting feelings about abortion into law in a way they can live with. Allowing the American people to have their way on a subject the Constitution does not mention is not extremism.
(E-mail Steve Chapman through the Web page at www.creators.com)