Mirror of Justice

I realize that I am something of a broken record on this point, but so long as the charge is made, I'm going to keep disagreeing with it.  Rob links to Jack Balkin's claim that:

[P]erhaps most importantly, the President did not use this opportunity to call directly for overturning Roe v. Wade. If he was really serious about protecting the sanctity of life as he sees it, he would do more than nibble about the edges with makeweights like the Born-Alive Infants Protection Act of 2002: he would state, clearly and forcefully, that Roe v. Wade is legalized murder and demand that it be overturned immediately. But he has not done so. Indeed, throughout his political career George W. Bush has always appealed to pro-life voters but has always stopped short of advocating the policy that they actually seek -- the overturning of Roe and the criminalization of abortion. The reason is that he knows the achievement of both of these would be a disaster for the electoral prospects of the Republican Party. Clearly some things are far more important than protecting the sanctity of human life.

In my view, the charge grows no more plausible through repetition.  Now, let's agree that reasonable people could think that the President's commitment to the sanctity of life is muddied by his Administration's positions on war, the death penalty, and interrogating detainees.  (Of course, those same people should consider whether the human-dignity commitments of those who -- quite rightly -- abhor maltreatment of prisoners is muddied to the extent they are unswervingly dedicated to preserving constitutionalized abortion-on-demand.) 

That said, it does not follow from the fact that President Bush "knows the achievement of both of these [i.e., overturning Roe and criminalizing abortion] would be a disaster for the electoral prospects of the Republican Party" that "[c]learly some things are far more important than protecting the sanctity of human life."  This is because saying what Professor Balkin thinks the President should be saying would not simply hurt the Republican Party; it would do nothing to "protect[] the sanctity of human life."  It would, however, hamstring badly the ability of the President and his Party to do things -- real things, not merely, "nibble[s] around the edges" -- that make the best of a bad constitutional and political situation, and it would empower those who oppose all regulation of abortion, support public funding for abortion, and are uninterested in the free-conscience rights of medical professionals who oppose abortion.

UPDATE:  Hadley Arkes sends in the following thoughts, in response to this post:

Rick . . . misses something quite important on two levels:

(1) For the president to call for the overthrowing of Roe shifts the attention back to the courts, and sustains the convenient notion that the work of dealing of abortion falls entirely to the courts.  As I've been arguing in First Things, that attitude diverts the political class from taking their own responsibilities and dealing with the matter with the instruments they have in hand.   Quite regardless of what the Court does in the case on partial-birth abortion, the President can move along the paths I've suggested in memos to the White House staff -- He can propose that we remove all federal funding from hospitals and clinics that house partial-birth abortions or the "live birth abortions" that were banned in the Born-Alive Infants' Protection Act.  That would generate, for the Democrats, tensions and divisions that would be utterly crippling.   He could raise the question of whether the formulas of the Civil Rights Acts apply:  If a person walks into clinic where people are receiving Medicare or Social Security checks, or a refund from the IRS, is the whole place a recipient now of federal funds?  That too would subject the Democrats to tensions hard to handle.

(2) [Rick] rather misses the powerful lever that the Born-Alive Act has, totally within the hands of the Administration, if the Administration would use it.  I've already pointed out the application of the Bob Jones case.  There was no real public policy in that case, barring racial discrimination in the private choice of partners in sex and marriage.  But there is indeed a law now that bars the live-birth abortions.  The Administration could move through the IRS to remove tax exemptions from the hospital in Morristown and certain Providence hospitals in California, where these abortions are "performed."  But beyond that, the Administration could finally get serious about enforcing the Born-Alive act in the clearest case that has been brought before it--the case from Morristown, with a brave nurse coming forward to offer testimony. . . .