A moment of clarity on Roe

It's pretty infrequent that a paper with the politics and stature of the Washington Post features writing that challenges the liberal status quo when it comes to Roe v. Wade, but columnist Richard Cohen achieves that nicely in today's edition.

Cohen, self-identified as pro-choice, explains that his thought process has evolved over the last 30 years, to this point: "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."

That should send shudders through Kate Michelman, Nancy Keenan and their pro-abortion friends at NARAL Pro-Choice America. (No, they're not pro-choice — if they were, they wouldn't be so blindly and viciously opposed to ideas like informed consent.) Cohen is essentially poking big, gaping holes in their theory that "an aggressive anti-choice movement [is] intent on taking away our rights and freedoms." Instead, it's a friend of the movement who is pointing out that their intense focus on rights leaves out an inconvenient fact: when they talk about the "Right to Choose," they don't mention that they want the right to choose to end a human life.

Cohen points out that the genesis of Roe v. Wade was the 1965 privacy decision Griswold v. Connecticut. Ironically, this decision was based on a concept currently under attack by the same-sex marriage crowd: "the notion that marriage was a privileged institution into which law should not interfere," as Pennsylvania Sen. Rick Santorum wrote in his recent book, It Takes a Family. Griswold overturned a state law forbidding the use of contraceptives by married couples, which was easy for America to understand as a privacy issue. After all, where does the government get the right to tell a married couple what it can or cannot do behind its bedroom door?

Roe as a privacy case is not so clearcut ("...it is not hard to say it confounds our common-sense understanding of what privacy is," Cohen said). It is also based on 1973 science, which was unaware of facts such as the existence of a fetal heartbeat within three weeks of conception.
As Cohen said:

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.

And finally, the most important observation in Cohen's essay: after 30 years of thinking about Roe, it's obvious (to Cohen, at least) that Roe was exactly the kind of judicial activism that has coservative court watchers so up in arms, yet its reversal would not have the kind of sky-is-falling result that pro-abortion sorts are foreseeing:

Conservatives -- and some liberals -- have long argued that the right to an abortion ought to be regulated by 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.

For liberals, 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 antiabortion 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 well.

The reversal of Roe v. Wade is such a touchy subject among the far-left that no one in congress is willing to challenge the standard orthodoxy that such a reversal would mean The End of the World As We Know it. But the fact that the pro-abortion movement has such a hold on the far-left, a grip that refuses to allow the type of dissent that Cohen writes about, is yet another example that makes Cohen's point: We've lost a bit of our soul as well.