Federalist Society Posts Debate on Abortion

The Federalist Society has posted a written debate on Abortion and the Courts, with Wendy Long taking the anti-choice side and Jennifer Brown arguing the pro-choice position.  Brown did an excellent job in the face of depressingly strident and ill-informed assertions on Long's part.

Here's the comment I submitted:

Why am I having a tired sense of deja vu reading this debate?

Maybe it's because of the time-worn arguments Long invokes about why privacy is not protected by the Constitution, arguments that have not grown more convincing with age.  Take her point that one must "rewrite the Constitution" to find a right of privacy that encompasses fundamental personal decisions like whether to bear a child.  Lots of things that Long probably thinks should be protected aren't literally mentioned in the Constitution -- like the Executive Privilege that President Bush lately keeps threatening to invoke.  And, if we want to be literal, the Ninth Amendment literally does contemplate rights not listed in the Constitution.

Or maybe it's Long's strident, uninformed assertions about what kinds of abortion procedures are and aren't healthy for women.  Her exclusive reliance on the dissents in Carhart v. Stenberg for how abortions could be done most safely (e.g.,"it would be safer still to deliver the child intact and then kill her, outside the womb altogether"??) betray an enormous void in her understanding of the medical issues involved.  There is a reason for the near unanimity among trial judges that these bans are unconstitutional.  Their ranks include conservative judges like the recently deceased Judge Casey, who was obviously personally opposed to abortion yet invalidated the federal ban. These judges sat through trials in which they heard detailed medical evidence on both sides of the issue. Perhaps Long could start by reading the trial courts' opinions or, as Brown suggests, the Supreme Court briefs.

On the other hand, maybe I'm exhausted by Long's disingenuous, half-hearted claim that fetuses are persons.  If a fetus is really a person, why on earth would we want to let state legislatures vote on the question and risk a situation in which some states allow the murder of these innocent babies?  Moreoever, even if Long is willing to accept total bans on abortion, the public clearly is not.  Witness South Dakota, where voters rejected a ban that failed to include exceptions for rape and incest. Law professors can come up with fancy "self-defense" arguments that would explain the rape and incest exceptions, but I guarantee you this is not where the public is coming from.  The public goes with its gut on abortion.  It tolerates abortions that it thinks are "just," and its sense of justice is informed by stereotypes about irresponsible and selfish women. In the face of those kinds of motivations, do we need to depend on the Constitution to protect women's rights to determine the course of their own lives and health? Absolutely.

Until opponents of the right to abortion are ready to address the issues forthrightly and honestly, we are doomed to have the same conversations over and over, and get nowhere.