Words Matter: Caught

DALLAS, Jan. 12 (UPI) -- Among other prediction for the New Year, here's a big one -- Roe v. Wade, the 1973 decision that had the effect of legalizing abortion in the United States, will be overturned.

How do I know? Because the pro-Roe coalition split following the 2004 election. In fact, the division is so sharp it's as if Moses returned to part the figurative sea of Democrats. Having once communicated that the legal philosophy behind Roe is flawed, there's no way the Democrats can mount a unified front.

The declaration of the attack on Roe, or more precisely on the legal underpinnings, came not from right wing Republicans or the groups like Right to Life or Phyllis Schlafly's Eagle Forum. It came from advocates of gay marriage, who suffered a decisive defeat on Nov. 2. Constitutional referendums banning same sex marriage were on 11 state ballots. They passed in all 11, and they passed by wide margins.

Heated debates are going on in publications and Internet sites such as PlanetOut.com, Gay.com, outandabout.com, Out magazine and The Advocate magazine, chat rooms and forums where issues of concern to the gay community are discussed and outline what the future strategy should be. Some call for continued legal challenges by individuals or couples, hoping to create a body of court decisions in sympathetic states and circuits. A pile of decisions ruling that bans on same-sex marriages are discriminatory would lay the groundwork for when the political tides turn, as they argue, and they inevitably will, clinching success in currently hostile states.

A counter argument advises focusing on legalizing civil unions and obtaining benefits for domestic partners, pointing out that the polls show the public is more favorably inclined to them. These individuals are quoting President Bush, noting he said a state could grant legal protections if it chose. This argument was concisely voiced by Jonathan Rauch, himself gay and an advocate of gay marriage, and the author of "Gay Marriage: Why it is Good for Gays, Good for Straights, and Good for America." Rauch chose the pages of the eminently conservative Wall Street Journal to write, "The best chance of averting a culture war is to localize the issue by leaving it to the states, letting them go their own way at their own speed." This, of course, is precisely the argument that the Left and Democrats reject in the abortion debate.

The movement to overturn Roe is characterized by NOW President Kim Gandy as "women's rights are under siege," and "sending women farther back than the dark alleys."

Actually, the argument is that Roe was inappropriately decided at the Federal level, with the Supreme Court finding a right to it within a right to privacy which itself is not enumerated in the Constitution but in the late Justice Blackman's famous phrase, in the "penumbras" of the Constitution. Overturning Roe would, as the advocates of gay marriage recognize, return the decision to the state level, which could be expected to react predictably. Abortion would be legal in New York, as it was in 1973, and states like Vermont and California. It might be legal in the first trimester in some states; legal in some circumstances such as rape, incest, life and health of the mother in others. There will be differences, just as the constitutional referendums on gay marriage varied.

Ralph Waldo Emerson's famous quote, "Foolish consistency is the hobgoblin of little minds," might be rendered that it is foolish to expect any consistency in politics. The Republicans, pressing for a constitutional amendment to define marriage as between a man and a woman, are now advocating the same position of the pro-choice forces, exactly the opposite position they are taking on overturning Roe.

The parties' positions on judicial activism, and the ability of judges to push interpretation of the law to the point of making it, are similarly self-serving. Democrats approve of judicial activism, when, as in Massachusetts, judges ruled in their favor, but are opposed to it if it means a judge rules that the 10 Commandments may be displayed.

Far Right Republicans disapprove of judicial activism but only because conservative judges have unexpectedly proved just that, conservative, and have resisted the temptation, despite urging from the Right, to write their own laws. Indeed, Judge Patrick Higginbotham of the 5th Circuit was the target of criticism from the Right for his decision in Margaret S. v. Edwards 749 F 2d. in 1986. That decision struck down a Louisiana statute on grounds of vagueness, a finding which does not bar state regulation but only requires greater clarity in its drafting. Nonetheless, Judge Higginbotham was roundly attacked because his decision wasn't "right."

Rauch concludes that "popular sovereignty is alive and well in the states." Indeed it is, and should be on both these volatile issues, and Republicans should thank him for making the argument so convincingly.

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Merrie Spaeth is the president of a Dallas-based consulting firm and is a regular commentator and writer on communication issues. She was the Director of Media Relations and Special Assistant to President Reagan.