At Last, an Abortion Ruling That Angers Both Sides


July 02, 1992|By GEORGE F. WILL

WASHINGTON. — Washington -- The Supreme Court is most prolix when least principled. On Monday the court produced one pound 14 ounces of opinions about abortion. Its mostly pseudo-constitutional reasoning traces back 19 years to 57 words by which the court severed its original abortion decision from the Constitution:

''The right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.''

In that Roe v. Wade decision in 1973, the court announced a ''fundamental'' right to abortion. That right is a subsidiary of the ''privacy'' right that the court discovered in the Constitution in 1965.

As for attaching those two rights to a particular part of the Constitution's text, the court treated that as a trivial detail -- almost a matter of taste.

You say the Ninth Amendment, I say the Fourteenth. You say Tomato, I say Tomahto. How suitable that the decision subsequently defended by ''pro-choice'' rests on a judicial invitation to choose where you say the Constitution contains the ''fundamental'' right to abortion.

By this 1973 decision, at once frivolous and arrogant, the court ''constitutionally disentitled'' (Justice White's words in dissent) 50 state legislatures from deliberating about the proper balance of the many values involved in protecting, or not protecting, fetal life. Now the court has compounded its muddle by affirming the 1973 decision while granting legislatures latitude to enact regulations that do not place an ''undue burden'' on the abortion right.

Pro-abortion forces say this test gives scant guidance to legislators. They are right and it serves them right. The ''undue burden'' test is just another flight of judicial legislating. But that is exactly what the pro-abortion forces welcomed 19 years ago when, doing an end run around democratic processes, they incited the court to manufacture an abortion right out of the manufactured privacy right.

Where will the court, which pretends to be construing the Constitution, find its criteria of ''undue burden''? In the Ninth Amendment? The Fourteenth? No, it will find the criteria where it really found the abortion right itself, in the personal preferences and social agendas of various justices.

This ''undue burden'' test guarantees a third decade of litigation. Chalk up another triumph of ''moderation.''

The culture was moving before the court moved in 1973. Michael Barone, author of ''The Almanac of American Politics,'' notes that in the five years before 1973, 18 states liberalized abortion laws. By 1973 two-thirds of Americans lived in those states or within a 100-mile drive of one of them. The process of persuasion and accommodation, sometimes called democracy, was working.

Then the court aborted the process, nationalized the issue and made litigation rather than legislation the medium by which abortion policy would be made.

The arrogance that is the essence of all this is revealed when Justices O'Connor, Kennedy and Souter said the court has called ''the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.''

That is: Children, shush. Your arguing is giving us a headache. Democracy is too noisy. Obey the mandate we find ''rooted'' in the Constitution.

Rooted where? Oh, in the Ninth Amendment. Or the Fourteenth. Whatever.

George F. Will is a syndicated columnist.

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