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Pro-life Democrats and Roe v. Wade

8:02 PM, Aug 27, 2008 • By TERRY EASTLAND
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Denver
During that Democrats for Life meeting today, held at the Monaco Hotel not far from the Pepsi Center, some of the speakers criticized an ostensibly pro-life Republican Party for failing to make serious progress on a pro-life agenda. One criticism in particular was that despite the fact that Republican presidents have appointed all but two of the last nine Justices, the Supreme Court still hasn't overruled Roe v. Wade, the 1973 decision in which the Court declared a constitutional right to abortion.

Three thoughts:

First, Democratic congressman Lincoln Davis, one of the speakers who made this argument, failed to distinguish between (1) an overruling of Roe, which would restore to the people the authority to decide abortion policy, and (2) what that policy should be. After all, you can regard Roe as awful constitutional law (if even constitutional law) and still be for the abortion right as a matter of policy. Of course, pro-choicers would regard an overruling of Roe as a huge setback, since what the Court handed them in Roe would now have to be won again through the ordinary political process. From that perspective, an overruling of Roe could be said to be pro-life, but only in the sense that a loss for us is a win for them.

Second, if Davis truly laments the Court's failure to strike down Roe, he can blame the pro-choicers who dominated his own party in 1987 when a Senate Democratic majority blocked the nomination of Robert Bork to the Supreme Court. No one right or left doubts that had Bork been confirmed, and thus his eventual replacement Anthony Kennedy not nominated and confirmed, Roe would have been overruled, probably in one of the series of abortion cases in the late 1980s and early 1990s in which the Court was explicitly asked to overrule Roe.

Third, the Senate Democrats' general in the Bork confirmation battle was none other than Joe Biden. Wonder what the pro-life Davis thinks of Biden's role in that historic showdown. Biden, by the way, flip-flopped on Bork, changing his mind little more than a week after the judge was nominated, thanks to the anguished importuning of liberal interest groups.