Over at First Things, Hadley Arkes notes the push by some pro-choice advocates, in the wake of Gonzales v. Carhart, to have state legislatures shore up the right to abortion. This is not an entirely unwelcome development, in his view:
But behold: With this panicky recoil from the holding in Carhart, the liberals are now behind the push to have the states start legislating again on abortion. With each move, they affirm the premise that the legislatures may indeed legislate on this subject. Their aim, of course, is to vindicate the right to abortion, but they will find that, as they try to shape that right, they will also be marking, unavoidably, the limits of abortion. And those limits, they will discover, will be drawn far less broadly than any “limits” that can be found in the law of abortion as it has been shaped by the federal courts. The champions of abortion rights fancy they are taking the initiative, resisting the Court that has been altered now by the presence of John Roberts and Samuel Alito. But in the face of these initiatives, the pro-life side might well bring back that old line from Br’er Rabbit in the Uncle Remus stories: “Please don’t throw me in that briar patch.” But, of course, Br’er Rabbit, in the briar patch, was in his element. For the liberals to bring the issue of abortion into the arena of politics, in the legislatures, is to bring us into the briar patch, where they are likely to suffer some disagreeable surprises.
It also bears noting that Arkes is not too impressed with President Bush's work in this area:
The melancholy side of this situation is that the pro-life side should be playing defense at all. In the aftermath of Gonzales v. Carhart, a pro-life president could have induced real strains in his adversaries by offering a moderate follow-up to the case: Even many Democrats, including Harry Reid, voted for the federal bill on partial-birth abortion, a bill containing criminal penalties. Mr. Bush could have come forward with the proposal that we enforce the bill with measures short of criminal penalties: We could simply withdraw federal funds from all hospitals and clinics that housed the surgery. That measure, too, would command massive support in the country. Even people who regard abortion as a legitimate “personal” choice have been unwilling to regard it as “public good” that has to be paid for by everyone else. And yet, with a step of that kind, the president would throw the pro-abortion party into the most grievous tensions. The Democrats surely know that, if Congress could use its power over spending to restrict abortions, it could legislate on abortions every step of the way, without even appearing to legislate. After all, if hospitals and clinics do not accept the federal money, they are still free to do the surgeries and put the burden of litigation on the government. But if the Democrats resist, they resist on a terrain that is heavily, sharply tilted against them.
All of this might have taken place if there were a White House genuinely interested in taking even modest initiatives in advancing the pro-life argument. But quite apart from the aversion of this president to doing that sort of thing, there is the most curious want of political reflexes. Any move of this kind taken by the president creates strain for the Democrats in Congress. And any strain for the opposition will impair them on other matters as well. It would keep them off balance in dealing with the war in Iraq, or in their campaign to bring down the U.S. Attorney General, or to undercut the measures of this administration in waging the war against terrorism. We may count this as the season of paths newly opened, of leverage newly discovered. But it also the season of unfolding revelation about an administration that will not defend its measures, not defend its own people, and where it declines to take costless initiatives, even when they would divide its enemies and hearten its friends. It is the season of deficits in political leadership, made ever clearer with each passing week.
