Bush must spin pro-life views as legislative, not judicial issue

If the presidential campaign were a Harry Potter book, abortion would be the Issue-Which-Must-Not-Be-Named. Texas Gov. George W. Bush wants to protect the lives of the unborn, but won't say what he will protect them from. Vice President Al Gore supports a woman's right to choose, but again, the right to choose what?

This isn't a column about the pros and cons of abortion. My own opinion is pretty muddled, and, anyway, the existing literature on that issue is partly responsible for our disappearing forests. But after an analysis of the candidates' rhetoric, the debate on abortion seems completely misguided to me.

Conventional wisdom — judging from New York Times editorials — says Bush must shut up about his pro-life stance because it is an unpopular position, a required nod to the religious right and upsetting to swing voters who are worried that as president, Bush would appoint Supreme Court justices who would overturn Roe v. Wade.

And he may. But so what? For 30 years the abortion debate has been centered on the courts — it doesn't have to be.

Abortion originally became legal in some states because the state legislatures, responding to constituents, deemed it should be. California and New York, for instance, had relatively liberal laws by the early 1970s. Then, in Roe v. Wade and companion cases, the Supreme Court decided this democratic method wasn't fast enough, that abortion was in fact a right, located vaguely somewhere in the penumbras of the Constitution.

The case made almost all abortion legal, but overturning Roe won't make abortion illegal. Instead, the decision will go back to the states, where, if a majority of Americans support legal abortion — as pro-choice groups assert — the democratic process will keep the procedure legal. It doesn't matter if it's a women's issue. Even if men are proportionally over-represented in state legislatures, surveys show men to be more pro-choice than women. Sure, some states will ban abortion, but most of these states (such as Kansas) have so few abortion providers that most women won't notice the difference — they have almost no access to abortion anyway.

In fact, pro-choice groups should welcome the chance to enshrine legal abortion in democratic law. As Justice Antonin Scalia pointed out in the Nebraska partial-birth abortion case, the issue has led to attempts to pack the court since the 1970s. With abortion out of the way, liberals (and conservatives) can focus on selecting judges who adhere to their general judicial philosophy not just those who agree with them on abortion. With Roe v. Wade overturned and the issue recognized as a legislative one, the abortion debate will no longer hinge on who is president and whether he appoints one justice or two. Even if Republican presidents appoint strict constructionists, these justices won't overturn state laws legalizing abortion — it's against their philosophy to overturn state laws unless they explicitly violate the Constitution as the founders intended.

So why don't pro-choice groups forget about Roe v. Wade? Well, look at Gore — he supports a woman's right to choose, but doesn't talk about abortion. It's easier to keep holding an election among nine unelected judges (holding steady now at 5-4) than to convince the electorate.

The truth is, pro-choice groups cannot simultaneously claim that a majority of Americans supports a woman's right to choose and that we still need Roe v. Wade to protect abortion. If a majority supports legal abortion, Roe is unnecessary. But it's far more likely that it doesn't. The idea of ending a baby's life gives most Americans the jitters.

In which case it makes no sense that Bush won't talk about his pro-life views. Given his recent Adam Clymer comments, he may be paying more attention to the New York Times than to the public. Laura Vanderkam is a Wilson School major from Granger, Ind. She can be reached at laurav@princeton.edu.