Thursday, April 21, 2005
The Trouble With Harry
In his weekly NYT column, David Brooks cuts through the Gordian knot of our current legislative impasse with his characteristic brilliance and subtlety of mind.
It's all Harry Blackmun's fault.
See, if he'd only refrained from inflicting the "undemocratic" Roe v. Wade on us (as consistently described by roughly 38% of the respondents in poll after poll), we wouldn't have "all these problems," as someone else recently said in another context, and we would not be staring at nuclear options, filibusters and the breakdown of all we hold dear. Instead, we'd have a tranquil polity in which each state, in its own Solomonic wisdom, would come up with a legislative compromise on abortion and everyone would be happy.
I'm sure space constraints kept Brooks from citing the most obvious precedent for this approach of subjecting a minority group's personal autonomy to state by state legislation. In that case, courts understood their proper role, and deferentially refused to interfere when conflicts arose. I think we all recall how well that turned out.
This is the kind of "thinking outside the box" that we could all stand to see more of. I, for one, look forward to a country in which an act could be perfectly legal in one jurisdiction and punishable by death in another, don't you?
And just think of all the myriad "compromises" that might come out of this bold experiment in the laboratories of democracy. In one state, rape victims might get a loophole; in another incest victims might get the same perk. Statutory rape would be one of those grey areas that legislatures could quite reasonably arrive at different decisions. In other states, a woman might have to show she took all possible precautions to not get pregnant before being granted the right to terminate her pregnancy. (That is, assuming that contraception were still legal in her state to begin with.) In one state, the father of the fetus might wield veto power over the woman's decision--why, in "liberal" states, he might even be allowed to compel the woman to have an abortion against her will. (Perhaps Dick Cheney could cast the deciding vote?)
And then there's always the possibility that an antichoice state concerned with moral and logical consistency might make a cooperating father as criminally liable for an abortion as the woman. Ha! A little joke there.
And once the concept of the fetus' superior rights to the mother's gained traction, we could move into even more adventurous "compromises" such as extending the concept of negligent homicide to pregnant women. Perhaps women who miscarried while smoking and drinking could get a statutory pass, but women who used other substances would be forced to pay for their depraved indifference to their unwanted offspring's well-being. Indeed, under a Roe-less legal system, we would finally enjoy a truly multicultural society, one in which we celebrated life in all its manifold glories. I'm sure that the current opponents of Roe would be satisfied with this patchwork solution to what formerly seemed like an insoluble problem.
Why didn't we think of this sooner?
It's all Harry Blackmun's fault.
See, if he'd only refrained from inflicting the "undemocratic" Roe v. Wade on us (as consistently described by roughly 38% of the respondents in poll after poll), we wouldn't have "all these problems," as someone else recently said in another context, and we would not be staring at nuclear options, filibusters and the breakdown of all we hold dear. Instead, we'd have a tranquil polity in which each state, in its own Solomonic wisdom, would come up with a legislative compromise on abortion and everyone would be happy.
I'm sure space constraints kept Brooks from citing the most obvious precedent for this approach of subjecting a minority group's personal autonomy to state by state legislation. In that case, courts understood their proper role, and deferentially refused to interfere when conflicts arose. I think we all recall how well that turned out.
This is the kind of "thinking outside the box" that we could all stand to see more of. I, for one, look forward to a country in which an act could be perfectly legal in one jurisdiction and punishable by death in another, don't you?
And just think of all the myriad "compromises" that might come out of this bold experiment in the laboratories of democracy. In one state, rape victims might get a loophole; in another incest victims might get the same perk. Statutory rape would be one of those grey areas that legislatures could quite reasonably arrive at different decisions. In other states, a woman might have to show she took all possible precautions to not get pregnant before being granted the right to terminate her pregnancy. (That is, assuming that contraception were still legal in her state to begin with.) In one state, the father of the fetus might wield veto power over the woman's decision--why, in "liberal" states, he might even be allowed to compel the woman to have an abortion against her will. (Perhaps Dick Cheney could cast the deciding vote?)
And then there's always the possibility that an antichoice state concerned with moral and logical consistency might make a cooperating father as criminally liable for an abortion as the woman. Ha! A little joke there.
And once the concept of the fetus' superior rights to the mother's gained traction, we could move into even more adventurous "compromises" such as extending the concept of negligent homicide to pregnant women. Perhaps women who miscarried while smoking and drinking could get a statutory pass, but women who used other substances would be forced to pay for their depraved indifference to their unwanted offspring's well-being. Indeed, under a Roe-less legal system, we would finally enjoy a truly multicultural society, one in which we celebrated life in all its manifold glories. I'm sure that the current opponents of Roe would be satisfied with this patchwork solution to what formerly seemed like an insoluble problem.
Why didn't we think of this sooner?
