COLUMN RIGHT : This Court Won’t Be Our Moral Keeper : Recent decisions on abortion respect the law; they don’t predict the end for Roe vs. Wade

For nearly two decades American politics has been corrupted by the passions aroused by the Supreme Court’s abortion decision, Roe vs. Wade.

Washington is constantly besieged by this side or that coming to town to march, to protest, to lobby. And across the land communities are disrupted by the clash of advocates and opponents of abortion. More than 200 Operation Rescue demonstrators were arrested and toted off to jail in Brookline, Mass., a few weeks ago for their attempt to close down two abortion clinics.

Ultimately the focus of the debate is the Supreme Court itself. Both sides of opinion in this great debate have convinced themselves that the judiciary is merely a more remote legislature that can eventually be made to yield to public opinion. The two most recent abortion-related cases, Webster vs. Reproductive Health Services and Rust vs. Sullivan, have only served to heighten the anxiety and resolve of both sides.

Since the advent of the Rehnquist court, the opponents of Roe especially have been encouraged; it has seemed that Roe vs. Wade has been tottering ever closer to being overruled. If that is true, it is not for the reasons its opponents may think. And to that extent, all of the protests in the world are not going to achieve a thing. The court and the public are simply not speaking the same language.

The opponents of Roe are mired in moral arguments; the Supreme Court speaks only the language of law. No one on the court has ever made a moral case for abortion; it has always confronted it merely as a matter of one constitutional right trumping another. And even at that, it has never been suggested that it is an absolute right. More important, no one on the court has ever made the moral case against abortion.

If the opponents of Roe expect to see it overruled, they had better learn to speak the language of the court. They must exchange their impassioned moral rhetoric for the rather more sterile language of constitutionalism. If Roe is going to be overruled, it is not going to be because a majority of the justices will be willing to say abortion in their view is morally wrong. It will only be because a majority is willing to acknowledge that the Constitution does not give them the power to decide such moral questions.

The Webster and Rust cases together provide something of a primer from which these new lessons need to be drawn. What they teach is that the new court is willing to subordinate the moral question of abortion to two more commanding principles of the Constitution: federalism and separation of powers. Neither Webster nor Rust calls into question the morality of abortion; these cases only restore some judicial respect to our Constitution’s most basic structural principles.

The implications of this fact are seen most clearly by turning the the issues of the cases on their heads. In Webster the issue was whether the States (in that case, Missouri) could place certain restrictions on abortions. In Rust, the question was whether the government, in allocating funds for prenatal counseling, could prohibit clinics receiving these funds from mention of abortion as an option. What if the facts were exactly reversed? What if the plaintiff in Webster had brought suit demanding that the State place restrictions on freewheeling abortion laws? What if, in Rust, Congress had allocated funds specifically for abortion counseling and referral?

To those who oppose Roe on moral grounds, the news would not be good. The jurisprudence that informs the current majority of the court would allow the states to be as liberal as they might choose; it most assuredly would allow Congress the power to allocate such funds as it sees fit. To the degree to which one can discern a trend, the court seems to be committed to returning the highly charged emotional question of abortion to the fresh air of political discourse, taking it out of the realm of undemocratic judicial decree.

And that is precisely as it should be: Whenever either side in a case wins on moral rather than constitutional grounds, it is the people who lose.

The Supreme Court now bears the marks of Ronald Reagan and George Bush. Together they have shared one commitment: to appoint to the Supreme Court justices who would be content to declare the law and not to make it in order to restore popular government and rid the Republic of government by judiciary. Under the leadership of Chief Justice William Rehnquist, the court is doing just that. The court no longer thinks itself our moral guardian--one way or the other.