A Stitch in Haste

George Will makes two and a half fundamental mistakes in his column today about the world before and after Roe v. Wade:

First, the world before Roe:

Because of the court's supposedly therapeutic intervention in the nation's supposedly inadequate democratic debate about that subject, the issue still generates an irritable irrationality that was largely absent before 1973.

Then, America was operating under a regime of moral federalism. In the absence of ukases from the federal judiciary that generate continent-wide eruptions of tension and anger, many states were reexamining their abortion regulations, and many were relaxing them.

This is all entirely beside the point. There is either a right to early-stage abortion or there is not -- "democratic debate" be damned. If there is such a right, then by definition the very existence of any "democratic debate" on the subject is an affront to the Constitution and an abomination to individual rights and human dignity.

The "debate" should therefore have been limited to that underlying question from the outset: Is there such a right to early-stage abortion, not whether the (facially improper) "democratic debate" was "inadequate." And that debate should have been the exclusive domain of judges in the first place. The Roe court was not usurping anything except illegitimate majoritarian abuses of legislative authority.

With that in mind: Be as Bork or as Thomas as you want about answering the question of the purported underlying right at issue. Oppose the "right to early-stage abortion" as having no basis in the Constitution if you wish. Mock the Ninth and Fourteenth Amendments if you wish. Denounce "penumbras and emanations" if you wish. But don't complain that the courts were usurping "democratic debate." Where individual rights are concerned, it is the very presence of "democratic debate" that is "inadequate." The Court may have wrongly decided Roe, but it did not wrongly hear Roe.

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Second, the world after Roe:

Many, perhaps most, Americans, foggy about the workings of their government, think that overturning Roe would make abortion, one of the nation's most common surgical procedures, illegal everywhere. All it actually would do is restore abortion as a practice subject to state regulation.

As I have blogged repeatedly, and as the recent case Carhart v. Gonzales conclusively demonstrates, overturning Roe would not "send abortion back to the states." It would send abortion back to Congress -- with unambiguous (to non-libertarians, that is) authority to regulate it however it saw fit. Before the 2006 election, that would have meant the "Federal Right to Life Act." After the 2008 election, it would mean the "Federal Right to Choose Act." But above all, it would not mean "let the states decide."

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The half-mistake Will makes is using the word "ukases." It's quite simple really: Any word I have to look up does not belong in an op-ed piece. Or am I being too Colbertian?