I used to work on Capitol
Hill in D.C. My office was on the Senate
side. It faced west.
Every January I would see a huge group of people come
streaming up the hill on Constitution Avenue, and turn right, heading toward the
Supreme Court and passing in front of my office window. I was not pro-life in those days, but I was
always impressed that the overwhelming majority participating in the March for
Life were young people.
This year marked the 35th March for Life. It is held yearly in DC on the anniversary of
the Supreme Court’s decisions in Roe v.
Wade and Doe v. Bolton, creating
a federal constitutional right to abortion.
I know that many of my readers will argue with the world
“creating”; they will assert that the proper word is “recognized,” that what
the Supreme Court did was to recognize a right anchored in the Constitution,
that the Court did not
create anything.
However, I submit that they are wrong. Very few legal scholars, liberal or
conservative, maintain that a right to abortion is to be found in the current text
of the Constitution. I further submit
that this point is easily proved and illustrated by this fact: the Supreme
Court cannot find the text – the actual words - in which this “right” is located;
first the Court asserted in was in the implied “privacy” right, in later cases
it asserted it was in the “liberty” right, and, in the dissent in the
partial-birth abortion case last year, it was alleged to be in the “equal
protection” right.
I understand that many, many Americans believe there should
be a right to abortion, protected under law.
My challenge to them is this: then it is up to you to put it there; it
is up to you to have the Constitution amended to provide for such a right. That is the business of democracy. On disputed social issues such as abortion,
where there is deep disagreement, it is up to the people to resolve the issue.
Usually that will be through the people’s elected representatives in
state and/or federal legislatures. It
will not be through courts imposing a “constitutional right” which cannot even
be located in the constitutional text.
And democracy is what the March for Life is about. It is likely the longest sustained protest
movement in American history. And it is not dying out. For those of you who do
not live in DC, I can tell you it is a huge crowd, approaching, if not
exceeding, 100,000. And this year, my
impression as I marched, was that the crowd was much bigger than normal. This is not a movement that is going away.
But that is a challenge my pro-choice friends should be
prepared to meet. As we all know, if the
Supreme Court ever overturns or reverses Roe,
it will not “outlaw” abortion. Rather it
will say that the Constitution does not provide a right to abortion. Then, the issue will shift to the states to
decide. The battle over the issue will
then be waged in each state’s legislature.
If abortion is a necessary right, then surely pro-choice advocates can
convince their fellow Americans and legislatures to provide for it.
Of
course, once the issue is “out of the courts,” it is an issue of
persuasion. Pro-choice Americans have a
case to make. But so do those who march
every January, in the rain, snow or cold.
They ultimately persuaded me. And
I believe they will ultimately persuade America.