"I wonder why we can't . . . oh wait. I know."

If only we had a way to alter the Constitution, one where the citizens of these United States could change the law above the reach of even the highest court in the land . . . oh wait. We do.

Out of curiosity, how many times have members of Congress introduced to the floor a Constitutional Amendment that would grant the power to determine abortion laws exclusively to the states?

That would be a great idea, but in the climate we live in today, it is all too often all or nothing. Vocal proponents do not want any further limits, and those vocally against abortion want an entire ban.

If our political climate was a bit more rational, there would be some compromise. Unfortunately, because our elected officials feel they must pander to the extremes of each party, the majority of us, who would probably like to see very little use of abortion, are left out.

I know there is an argument out there that says government is best when the two elected branches are held by different parties due to gridlock, but I don't think that is truly the case. We would be much better served if the two parties acted on the common ground that they share and acted on our behalf.

The results are not necessarily either beneficial or rational when politicians look for common ground. It is possible that they would be, but politicians can agree on a bad policy just as easily as they can agree on a good policy.

The reason why an amendment giving states the exclusive power to regulate abortion is not often introduced (I do not know how often such an amendment has been introduced, if at all) is that the amendment would need the support of 2/3 of both houses of Congress and 3/4 of the states. In the 1990s, even a Republican Senate failed, repeatedly, to find the 2/3 needed to override Clinton's veto of the partial birth abortion bill, so a member of Congress would be justified in wondering what could be accomplished by introducing a constitutional amendment to negate Roe v. Wade. It would succeed in giving fans of legal abortion something to write about in their next fundraising letter, but it would not succeed in changing the law.

Karl, I think Michael's point was just to point out how a silly red herring is this 'oooh, you meanies, you dodged the political process!' charge that one hears so frequently from the pro-life side these days. Saying 'but the existing political processes would be hard for us to win within' doesn't make for much of a response to his point.

I absolutely agree in Karl's rejection of Kevin's attempt to use agreement as a hallmark of policy correctness. (That both parties seem to agree on terrible farm subsidy bills is a good example here.) I don't even know what the agreement position would be on this issue... is there really some comfortable middle ground on the question of abortion rights, that only the dynamics of political extremism are keeping us from finding? I don't really see what it could be. (One extremely limited example might be the so-called partial-birth abortions, which I think you could get a majority of both the population at large and of elected politicians to be willing to ban, if the right bill came along. But there's no incentive for pro-choicers to put forward such a bill (since it would, in their view, be bad policy). And the pro-lifers don't actually care enough about this to write a bill that isn't patently unconstitutional; but they seem to enjoy it too much as, in Karl's apt words, something to put in the next fundraising letters.)

I don't even know what the agreement position would be on this issue... is there really some comfortable middle ground on the question of abortion rights, that only the dynamics of political extremism are keeping us from finding? I don't really see what it could be.

Phil, my position is that this middle ground does in fact exist, but the current political dynamics prevent prevent us from reaching it. Public opinion polls consistently show that the public favors a right to choose, but simultaneously favors a vast array of restrictions (parental notification, waiting periods, bans on partial birth procedures, no federal funding) currently prevented by either the abortion lobby or judicial decision. Pro-lifers have considerable support when they talk about restrictions, but not so much when they talk about outright bans. On the other hand, the public favors more restrictions than the typical Democratic pro-choicer. President Clinton understood this dynamic when he came up with his "safe, legal, and rare" rhetoric.

DMD, there is very little public funding for abortions right now, and most of what there is is restricted to cover women in circumstances that people are generally favorable towards, i.e., in cases where the mother's life is threatened, or in cases of rape or incest. So, you're wrong about the federal funding issue.

Currently all but 6 states require either parental notification or, indeed, parental permission. So I don't see where the Democrats have generally gotten in the way of legislation there. (They do sensibly oppose all versions of such laws that lack a judicial bypass.)

I addressed so-called 'partial birth' abortions in my previous post; it's maybe the one case that goes the way you're talking about. But there is, in fact, no good policy reason to try to pass the laws in question -- infanticide is already illegal, after all, and pro-life claims that partial birth abortions are a way of committing infanticide are just false. (That is, inasmuch as those claims are meant to go beyond the claim that all abortions are really forms of infanticide. But as you note, this much stronger claim is not a majority view.)

The waiting period issue is an interesting one here, in that I don't think that there'd be much opposition to such laws if there weren't already so many barriers thrown in the way of women seeking abortions. So many states now have so few abortion providers that women must travel significant distances to see one, and it is an illegitimate burden on them to make them do such a trip twice. This is particularly so for poor women -- especially given the restrictions on medicaid-funded abortion mentioned above. In a policy environment with fewer such barriers, I don't think that such measures would be opposed as much. And, anyway, they seem to be generally moving forward in state legislatures, so again they aren't a good example of extremists keeping the public from getting the (often bad) policy that it wants.

Pro-lifers have considerable support when they talk about restrictions, but not so much when they talk about outright bans.

I believe the point is that Pro-Lifers will not, and arguably will not, accept a compromise on the outright ban. If they were ameniable to a compromise they probably would have enough individual drive to campaing for the outright ban.

Saying 'but the existing political processes would be hard for us to win within' doesn't make for much of a response to his point.

I think it does, though my previous comment was meant to address the question of why the amendment has not been introduced, not why David Darlington's original point was valid. However, I do agree with him, though the way he made the point, which I assume was chosen for style, does not make the necessary related argument that the Constitution cannot be honestly read as including an implied right to abortion, and that this is the reason why legislatures should still have the power to make it illegal. I think he would agree with me that it is right that legislatures are unable to directly limit any genuine constitutional right unless an amendment is passed.

With that addition, though, I think his point is valid. The fact that there are still political routes available to the pro-life movement does not weaken the criticism that Roe v. Wade frustrates the democratic process, where this issue is concerned. There are two of these political routes. The first is to wait for Supreme Court justices to die or retire while Republicans control the Senate and to make the selection of their replacements as substantially based on the future justices' personal beliefs as the Roe justices made the Roe decision on their own beliefs. This is the "easy" route. The second is to find 2/3 in both houses of Congress and legislatures in 3/4 of the states who are willing to vote for Michael's proposed amendment, which would allow the legislatures in many states (presumably close to 3/4 of them, if they support the amendment) to ban abortion. These are not simple procedural requirements, and if Roe had been decided correctly, the same procedural requirements would apply to banning, limiting, and preserving abortion.

I took David's little jab at the end not to be aimed at the _constitutional_ questions in Roe v. Wade (if it was aimed at Roe v. Wade, then it was a bizarrely roundabout way to do so), but rather the argument that one hears with some frequency that it was somehow _politically_ improper to appeal to the courts to address the abortion issue.

I think it was, but I also think that his point depends on the idea that Roe v. Wade was wrongly decided, and I think it is likely that this actually was one of his unstated assumptions.

Oh. In that case... *yawn*.