HOUSE_OVERSIGHT_017402.jpg

4.2.12
WC: 191694

Reproductive Freedom Project to advance a broad spectrum of reproductive
rights.

Litigation continued to be the weapon of choice in this battle.

Roe v. Wade helped secure the Presidency for Ronald Reagan, by giving him a “free” issue. It
was free because he – and other “pro-life” Republicans – could strongly oppose all abortion
without alienating moderate Republican women and men who favored a woman’s right to choose
but felt secure in the knowledge that the Supreme Court would continue to protect that right,
regardless of what Reagan and others said or did. Abortion thus became the most important issue
for right-wing religious zealots and a marginal issue for moderate Republicans who favored a
woman’s right to choose but who also supported the Republican economic and other programs.
This helped to destroy the moderate wing of the Republican Party (the so-called Rockefeller
Republicans) and drove former moderates such as the elder George Bush to the right. (He started
as a pro-choice Republican and ended up as a pro-life Republican whose hands were tied by the
Supreme Court.)

At bottom Roe v. Wade and Bush v. Gore represent opposite sides of the same currency of
judicial activism in areas more appropriately left to the political processes. Courts ought not to
jump into controversies that are political in nature and are capable of being resolved – even if not
smoothly or expeditiously – by the popular branches of government. Judges have no special
competence, qualifications or mandate to decide between equally compelling moral claims (as in
the abortion controversy) or equally compelling political claims (counting ballots by hand or
stopping the recount because the standard is ambiguous). Absent clear governing constitutional
principles (which are not present in either case), these are precisely the sorts of issues that should
be left to the rough-and-tumble of politics rather than the ipse dixit of five justices.94

There are, of course, considerable differences between Roe v. Wade and Bush v. Gore. No matter
how critical one may be of Roe, no one can accuse the justices who voted for it of being
politically partisan, as were the 5 Republican justices were voted to step the recount and hand the
election over the candidate and party for whom they had voted.

Though equality for gays and the right of a woman to choose abortion are the prime wedge issues
that today divide the religious right from the rest of the country, there are other issues that also
divide the country along religious lines. Some involve religion directly, such as prayer in the
public schools, the right of religious groups and persons to be exempted from laws of general
application, and religious discrimination—in law or in fact—against atheists, agnostics or
members of unpopular religions or “cults.”

The difficult question of how to balance freedom of religion with the equally important freedom
from religion—the two sides of the First Amendment coin—is never going to be neatly resolved
in a pluralistic democracy; it is an ongoing tight rope walk that requires sensitivity from all sides.
It also requires a Supreme Court willing to buck popular pressures in this highly sensitive area
that the framers of our Constitution deliberately removed from majoritarian politics. Most

94 Whether the same is true of the debate over capital punishment is a more complex issue, because of the
unfairness and inequality in administering the death penalty.

315

HOUSE_OVERSIGHT_017402