October 20, 2005
Is More Than Privacy Issue
A very long
time ago, I had a friend who had a girlfriend who became pregnant
and did not want the child. By then my friend had disappeared
and the young woman was alone -- she was in fact from Germany
-- and asked me to arrange an abortion for her. With little thought,
I did so. She went home to Germany and I never saw her again.
do things a bit differently now. I would give the matter much
more thought. I no longer see abortion as directly related to
sexual freedom or feminism and I no longer see it strictly as
a matter of personal privacy, either. It entails questions about
life -- maybe more so at the end of the process than at the beginning,
but life nonetheless.
not a fashionable view in some circles, but it is one that usually
gets grudging acceptance when I mention it. I know of no one who
has flipped on the abortion issue, but I do know of plenty of
people who no longer think of it as a minor procedure that only
prudes and right-wingers oppose. The anti-abortion movement has
in sentiment is not apparent in polls because they do not measure
doubt, only position: for or against. But between one and the
other, black or white, is a vast area of gray where up or down,
yes or no, fades to questions about circumstance: Why, what month,
etc? Whatever the case, the very basis of the Roe v. Wade
decision -- the one that grounds abortion rights in the Constitution
-- strikes many people now as faintly ridiculous. Whatever abortion
may be, it cannot simply be a matter of privacy.
of privacy, first enunciated in Griswold v. Connecticut (1965),
once made sense. It overturned a state law forbidding the use
of contraceptives by married couples. The average person could
easily understand that a right of privacy was at issue here. If
the government telling you what you can and cannot do in your
own bedroom is not about privacy, then what is? The Connecticut
law had to go. If the state legislature wasn't going to take it
off the books, then the court had to.
is a different matter. It entails so much more than mere birth
control -- issues that have roiled the country ever since the
Roe decision was handed down in 1973 -- and so much more
than mere privacy. As a layman, it's hard for me to raise profound
constitutional objections to the decision. But it is not hard
to say it confounds our common sense understanding of what privacy
If a Supreme
Court ruling is going to affect so many people then it ought to
rest on perfectly clear logic and up-to-date science. Roe,
with its reliance on trimesters and viability, has a musty feel
to it and its argument about privacy raises more questions than
it answers. For instance, if the right to an abortion is a matter
of privacy then why, asked Princeton professor Robert P. George
in The New York Times, is recreational drug use not?
You may think you ought to have the right to get high any way
you want, but it's hard to find that right in the constitution.
George asks the same question about prostitution. Legalize it,
if you want -- two consenting adults, after all -- but keep Jefferson,
Madison and the boys out of it.
-- and some liberals -- have long argued that the right to an
abortion ought to be regulated by the states. They have a point.
My guess is that the more populous states would legalize it, the
smaller ones would not -- and most women would be protected. The
prospect of some women traveling long distances to secure an abortion
does not cheer me -- I'm pro choice, I repeat -- but it would
relieve us all from having to defend a Supreme Court decision
whose reasoning has not held up. It seems more fiat than argument.
the trick is to untether abortion rights from Roe. The
former can stand even if the latter falls. The difficulty of doing
this is obvious. Roe has become so encrusted with precedent
that not even the White House will say how Harriet Miers would
vote on it, even though she is rigorously anti-abortion and politically
conservative. Still, a bad decision is a bad decision. If the
best we can say for it is that the end justifies the means, then
we have not only lost the argument -- but a bit of our soul as
2005, Washington Post Writers Group