Monday, February 19, 2007

McCain: Roe v. Wade Should be Overturned

Looking to shore up support among conservatives, John McCain has said that the court decision legalizing abortion should be overturned.

"I do not support Roe versus Wade. It should be overturned," the Arizona senator told about 800 people in South Carolina, one of the early voting states.

McCain also vowed that if elected, he would appoint judges who "strictly interpret the Constitution of the United States and do not legislate from the bench."

It's heartening to see another candidate recognize that Roe v. Wade is an abomination. By the time a person graduates from law school, they've been exposed to Roe at least twice, and usually more times than that. The first time, the student just shrugs it off in a "that's the way it is" way. The second time, the student starts thinking, "Now wait a minute! That logic was debunked in such-and-such!" And by the third time the student has to read Roe, he/she is thinking, "This is crap! This is a Supreme Court decision?!"

For the record, Roe was horribly written, illogical in parts and a complete usurpation of state powers in other parts. The trimester system (since abandoned) was utterly unworkable from the beginning, and the Constitutional underpinnings of Roe (the penumbras and emanations) were always unstable. Sandra Day O'Connor had a lot of work to do in Planned Parenthood v. Casey to shore up Roe's Constitutional basis (she did a pretty good job), but that doesn't mean the original decision wasn't, well, crap.

As pro-life as I am, I'm skeptical these days of anyone saying they wish Roe was overturned. IMO, that's like coming out and being pro-air. It's fine to say you recognize that the emperor has no clothes, but making him put on his clothes is another matter all together. While I think it is possible to overturn Roe and allow states to determine their own abortion laws, I'm not convinced it is likely.

The reason I'm not convinced Roe will ever be overturned is because of what the court did about Miranda back in 2000. After watching William Rehnquist lambast the Miranda decision for years (he was right, btw), it was severely disappointing to see him vote to uphold the Miranda warnings in a case that clearly could (and should) have overturned them. The reasoning? The warnings have been working for 30 years, and even though they are suspect Constitutionally, we shouldn't overturn them because police departments have adapted to them.

This is similar logic to that used by O'Connor in the Casey decision. Her argument was that women had come to depend on abortion as a "get out of jail free" card, and that it would be cruel to take that away from them. If this is the logic, why did we overturn slavery? Or Jim Crow laws? Or poll taxes? Or any of the many other laws that the court has declared to be unconstitutional? Surely, someone somewhere was "depending" on the law.

I'd like to think McCain is sincere about overturning Roe. I'm not convinced yet that even appointing strict constructionists to the Supreme Court will cause that body to overturn such a wayward decision. Conservative judges are loathe to legislate from the bench (read: make this stuff up) the way liberal ones do. It is one of the problems with doing things the correct way.