What makes these comments noteworthy-even shocking--is that McConnell, confirmed last month, was George W. Bush's nominee to sit on the 10th Circuit Court of Appeals, and that many social conservatives consider him their ideal Supreme Court justice. It's also different from what he said in a recent op-ed in The Wall Street Journal, in which he called Roe v. Wade an "embarrassment." Statements like these (along with his work on religious liberty issues) have prompted the Alliance for Justice and others liberal judicial groups to oppose McConnell's nomination
Yet there McConnell was saying that the right to an abortion is "as settled as any issue can be in constitutional law."
Think about it. As settled as desegregation in schools? As settled as "one man, one vote?" Apparently so. Let's be clear: McConnell wasn't saying that he had changed his mind about Roe. He was saying something more important: as a legal and cultural matter, the battle to reverse Roe and overturn a woman's constitutional right to an abortion is, for the foreseeable future, over.
Strangely, the press took little notice of McConnell's comments. Few newspapers recorded them as having anything morer than procedural significance. It's as if pro-life legal scholars call Roe "settled law" all the time.
It's not hard to understand why. As a candidate, George W. Bush hardly made overturning Roe a centerpiece of his presidential campaign. Like other Republicans, he talked about appointing judges who "respect the Constitution." When asked about Roe, candidate Bush spoke about needing to change minds before changing the law.
Since taking office, President Bush has reinstated the "Mexico City" policy, which prohibits federal funding for groups that provide or promote abortions abroad. He very publicly restricted the use of federal funds used in stem cell research. But when Senate Majority Leader Trent Lott promised to take up a ban on partial-birth abortion, the The Washington Post described White House aides as being "worried" about the politics of such a vote. (Their concerns, it seems, are justified. In Louisiana's recent run-off election for the Senate, Republican Suzanne Terrell's comments about outlawing abortion apparently prompted suburban women to vote for incumbent Mary Landrieu, who won a second term.)
As for filling vacancies on the Supreme Court, it's fair to say the administration places a higher priority on naming the first Hispanic to the Court than on appointing a justice who will work to overturn Roe.
Yet, that didn't happen. And when a few religious conservatives brought up abortion after the election, some of their peers became annoyed at them for not using better political judgment. It's as if conservatives, having surveyed the legal, political and cultural terrain, have decided that Roe is here to stay and that their efforts are better directed elsewhere.
They won't acknowledge this of course. After comparing abortion-on-demand to the Holocaust, forfeiting the battle over Roe smacks of defeatism--and comes perilously close to an acceptance of abortion itself.
Accepting Roe would have an institutional impact. Both sides of the abortion debate have an interest in depicting the right to an abortion as being unsettled. Since 1973, the image of the unborn child has defined the pro-life movement. The plea to "Save this child by reversing Roe" has moved Christians, both Catholic and Protestant, to give their time and money.
What would happen to the pro-life movement if this goal were removed? It's hard to imagine the "pro-life 2 issues," like stem-cell research and cloning, motivating ordinary folks in nearly the same way that overturning Roe has. Pro-choice advocates, for many of the same reasons, continue to depict Roe as under siege and the right to an abortion as endangered.
In a post-"No to Roe" world, there would still be plenty to do. There would still be the task of lovingly persuading women not to have an abortion and helping pregnant women to choose life. There's also the matter of regulating the time, place and manner of abortion. Compromise on some of these issues might be easier if every proposal, like partial-birth abortion or parental notification, weren't regarded as a Trojan horse, hiding an intent to roll back Roe.
We'll probably never find out. There's too much at stake to acknowledge the real status quo, as opposed to the more convenient one. But the battle over Roe is over, and their actions tell us that they know this, at least for the indefinite future. Regardless of what they want to acknowledge, the participants in the abortion debate are moving into a post-Roe era. McConnell was right: a lot has happened in the past three decades. The question is: can our politics keep up?