Cause this one’s going to make you spit out your coffee:
Abortion is a different matter. It entails so much more than mere birth control — issues that have roiled the country ever since the Roe decision was handed down in 1973 — and so much more than mere privacy. As a layman, it’s hard for me to raise profound constitutional objections to the decision. But it is not hard to say it confounds our common-sense understanding of what privacy is.
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. For instance, if the right to an abortion is a matter of privacy then why, asked Princeton professor Robert P. George in the New York Times, is recreational drug use not? You may think you ought to have the right to get high any way you want, but it’s hard to find that right in the Constitution. George asks the same question about prostitution. Legalize it, if you want — two consenting adults, after all — but keep Jefferson, Madison and the rest of the boys out of it.
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.