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It Was 36 Years Ago Today…

The late great Jerry Williams, the “Dean” of talk radio, made it a policy not to discuss abortion on his program. When challenged on his policy, he stated there were three factors behind his decision: everyone already has an opinion, no one is likely to change that opinion, and there really hasn’t been much new to add to the argument in the last thirty or so years. And while there certainly are exceptions to each of those points, they’re generally valid and preempt any progress from being made in debating the issue.

Today though, on the 36th anniversary of Roe v. Wade – the Supreme Court decision that struck down nearly all state bans and restrictions on abortion — it seems somehow appropriate to discuss the matter.

First up, is there anyone who is willing to argue that Roe v. Wade is a well-written decision? Regardless of one’s position on the issue, it’s a mess. It invented entire legal concepts to back up its decision, and shows every sign of backwards reasoning — coming up with the decision on the case, then working from there to find some rationale to justify it. Other Supreme Court rulings have been just plain wrong-headed — Plessy v. Ferguson comes to mind — but they were usually based on existing laws and a careful study of the Constitution. Not here, though — Justice Blackmun found an implied right to privacy within the 9th and 14th Amendment, and declared that abortion fell in there somewhere.

Second, the whole issue raises very ugly questions for partisans on both sides. For the pro-life side, who wish that abortion be made illegal, I have to ask: if it were to be made illegal, what would that law say? Who would be charged with the crime of participating in an abortion? And what would the penalties be for breaking that law?

According to the pro-life argument, abortion is murder. So by existing laws, committing murder and soliciting murder are the most severe crimes, punishable by life in prison or death in several states. So should women and their doctors face such penalties?

For the pro-choice side, I have to ask: at what point does a fetus become “human enough” to acquire the “right” to not be destroyed? The Supreme Court chose as the criterion “viability” — the point when the fetus can survive outside the mother’s womb — but this is a shifting standard. It was initially specified as 24 weeks from conception, but since then premature babies have survived at just under 20 weeks from conception. As medical science advances, that will only continue to decrease.

Abortion is one of those issues with no easy answer. I’ve long advocated the coward’s approach: strike down Roe v. Wade and return the issue to the states. There, it can be decided on a state by state basis, by legislators that are directly accountable to the people, and the people of each state can direct their legislators to pass laws that reflect their beliefs on the issue.

In some states, it’ll be a slam dunk. Massachusetts, for example, will be staunchly pro-choice. On the other hand, Utah will most likely have the most restrictions.

In essence, we will have 51 different laboratories  to try out different approaches and solutions to the issue of abortion. Some will work, some won’t. But that is not a bug in our system, but a feature — it’s a lot easier to get a legislature to change a law than it is to get a court to overrule its decision.

It’s not an easy solution. Indeed, it is guaranteed to be messy.

But it addresses one of the key points of Jerry Williams’ objection: the arguments would, for the first time in decades, be meaningful. There would be direct consequences of the debates, as the legislatures of the various states will not be able to dodge their obligations.


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