WITH THE APPROACH of the millennium, everyone who’s anyone wants to indulge in vague and vaporous thoughts about the challenges ahead. But in the midst of all this big talk, one issue, concrete and real, refuses to go away: abortion. The hard fact is that we have now in America a morally problematic and constitutionally unsound regime of abortion on demand. This fact is becoming increasingly difficult to shove under the rug. Indeed, abortion is likely to emerge as the central issue in the presidential campaign of 2000.
Or, more precisely, the status of Roe v. Wade is likely to emerge as the central issue. The reason is simple: The next president should have at least three Supreme Court appointments — enough to swing the balance of power on Roe (and on many other issues). This means that prospective appointments to the Supreme Court and other federal courts will be more of a campaign issue than usual. And abortion — Roe in particular — will be at the heart of it.
In recent decades, the federal judiciary has played a major role in many policy areas. But about abortion, the Court has tried to be thoroughly dispositive. Here, the Court has attempted entirely to foreclose a political struggle. Here, the Court has expressed animosity even to continued political debate. Here, the Court has granted victory almost completely to one side, precluding any hope of significant progress by the other. In no other major area of public debate — not affirmative action, not term limits, not gay rights — has the Court put its thumb so squarely and forcefully on one side of the scales.
Obviously, the overturning of Roe would merely send the abortion fight back to the states, and to Congress-which would by no means guarantee triumph for the pro-life cause. Equally obviously, the future of the abortion debate is dependent on many developments-cultural, political, sociological — outside the purview of the Court. But the status of Roe is key. If Roe is overturned, everything about the abortion debate — and much about many related debates — changes.
There are now three votes on the Court to overturn Roe. Two other justices, John Paul Stevens and Sandra Day O’Connor, are likely to step down soon after 2000, along with Chief Justice William Rehnquist. These three appointments will be fundamentally important. Pro-lifers know it. So do pro- choicers. And by 2000, voters in general will know it too, making it harder for candidates to get away with dodging and weaving on the issue.
The Democratic party, for its part, has abandoned any pretense of maintaining a big tent on abortion. When 2000 arrives, the Clinton-Gore administration will have clung for eight years to the most extreme, uncompromising abortion position imaginable. As a candidate in 1992, Bill Clinton pledged to nominate to the Supreme Court only those who supported Roe, and, true to his word, he made it a litmus test in his appointments of Ruth Bader Ginsburg and Stephen Breyer. Even Democrats like Dick Gephardt who support a ban on partial-birth abortions are fully committed to upholding Roe v. Wade. It is inconceivable, then, that the Democratic nominee in 2000 will retreat from his party’s pledge of allegiance to Roe v. Wade as the law of the land.
And what of the Republicans? As candidates, Ronald Reagan, George Bush, and Bob Dole were somewhat guarded in their commitments. They said they would nominate to the Court only strict constructionists, and they vouched for their own belief in the sanctity of human life. But given the performance of Justices O’Connor and Anthony Kennedy (appointed by Reagan), and particularly that of Justice David Souter (appointed by Bush), Republican voters are going to insist on much more explicit and concrete assurances from their presidential candidates. Those candidates will need to show that they understand Roe to be bad constitutional law, and they will need to say that they will nominate to the Court only those who clearly would vote to overturn Roe.
The truth is that abortion is an issue of profound moral, political, and constitutional importance. The theory underlying Roe and its progeny (especially 1992’s Casey decision) has major implications for a host of other important issues: assisted suicide, gay rights, cloning, the legal status of the family. And because Roe is the very centerpiece of the modern expansion of judicial power, its repeal is crucial to reviving republican self-government. Conversely, defending Roe is critical for modern liberalism, with its project of individual liberationism and moral relativism. For both sides, 2000 will be a moment of truth.
Will Republicans rise to this moment? Many will not, but surely one or two will. The successful candidate will need to articulate the injustice of our current abortion regime and the constitutional fallacy of Roe. He will also need to build a political majority behind a coherent plan that puts abortion in the course of ultimate extinction. This agenda — Lincolnian in character, principled but incremental, appealing to the better angels of our nature — will have to be at once politically credible and morally convincing. On these two criteria, most pro-life politicians currently fall short. Some declare that they are prolife, but cannot explain why, or why others should be. Others speak passionately against abortion, but their stridency alienates the uncertain; more important, they often fail to chart a practical course to a pro-life future.
At first, of course, the centrality of Roe will make GOP politicians nervous. But, in fact, it’s a Republican opportunity. The survey data — presented in a useful new booklet by Everett Carll Ladd and Karlyn H. Bowman, Public Opinion About Abortion — are clear: About a third of Americans are pro-choice, believing that abortion should be “generally available to those who want it.” These voters could possibly be persuaded that Roe was wrongly decided and that the issue should be fought out in the political arena, but in general they will be unreceptive to a pro-life message. But almost 45 percent of Americans seem to be basically pro-life: About 10 percent believe that abortion should not be permitted at all, and about 34 percent would outlaw it except in cases of rape, incest, and the life of the mother. This group should be relatively easy to mobilize in support of overturning Roe.
That leaves about 20 percent of the American people who believe that ” abortion should be available but under stricter limits than it is now.” These voters tend not to know how radical the current abortion regime is, or that it precludes the stricter limits they favor. They should be open to the argument that overturning Roe and returning the issue to the political process would allow for change in the direction they prefer. These swing voters would listen to a “Roe must go” message in 2000 if the case were made powerfully and intelligently. In the next election, neither the embarrassed inarticulateness of a Bob Dole nor the abolitionist thunder of an Alan Keyes will work.
But this year, too, is an election year. It was in 1858 that Lincoln and Douglas debated, laying the groundwork for Lincoln’s presidential candidacy two years later. We cannot expect Lincolnian eloquence or perceptiveness from today’s crop of Republicans, but we surely can hope for more than we have seen so far. Next week marks the twenty-fifth anniversary of Roe v. Wade. What will leading Republicans have to say? Anything? And how well will they say it? How much commitment and understanding will they show when pressed, as they will be sooner or later, on abortion?
Republicans talk a lot about being a majority party, about becoming a governing party, about shaping a conservative future. Roe and abortion are the test. For if Republicans are incapable of grappling with this moral and political challenge; if they cannot earn a mandate to overturn Roe and move towards a postabortion America, then, in truth, there will be no conservative future. Other issues are important, to be sure, and a governing party will have to show leadership on those issues as well. But Roe is central, because the regime of Roe stands in the way of what conservatives most want to bring about — a politics of republican self- government, constitutional norms, and moral decency.
William Kristol is editor of THE WEEKLY STANDARD.
