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January 19, 2006

Who Decides

While I have focused my recent discussions on the question of abortion, the larger question that concerns me about issues like abortion is title of this post: who decides?

As I noted, the question of abortion is contentious because it places two fundamental rights in conflict. If the woman's right to control her body is deemed paramount, then the child's right to life is set aside and vice versa. As the system now stands, we have allowed the judiciary the ability to make the determination as to which right shall prevail. The problem with giving such power to the judiciary is twofold: there is nothing in the law that actually answers the question, and by granting judges that level of power, we establish the judiciary as unaccountable actors.

While it is true that the law as it is now interpreted includes a right to an abortion, this right is not grounded in any fundamental legal principle. Nowhere in the Constitution nor any federal statue book can a student of the law find a principle which sets the right to control one's body over the right not to be interfered with by another person. The court examined the question set before it in Roe v. Wade and determined that the woman's right to control her body trumped the right of the child to exist, but this decision was grounded in the personal beliefs of the justices, not in the law. (Indeed, the justices did not even consider the rights of the child, a position which is defensible intellectually but again has no grounding in the law.)

Because this decision was not and can not be based on some concrete legal principle, it failed to resolve the issue and only polarized the proponents on both sides of the issue. Defenders of abortion have generally chosen to defend Roe as an inviolable precedent in order to protect a right they consider important, while prolife supporters have attempted to both undermine the decision through the legislative process while concurrently seeking to change the balance of the Supreme Court to overturn the decision. This has in turn led to the ongoing battles over the confirmation of Supreme Court justices, battles unheard of prior to the Roe decision.

While I am personally of the opinion that the woman's right to control her body does trump the rights of the child, the idea that unelected judges should be permitted to make such decisions disturbs me. While I believe that the emphasis of the mother's rights over the child's is appropriate in this decision, that belief is founded in logic, not law. By conceding the right of the courts to rule in this area, we grant the courts powers they should not have. The courts exist to resolve disputes related to the law, not disputes in general. If the law does not speak to an area, than the courts should have no jurisdiction. If the courts are given the ability to rule on areas where the law simply does not tread, than the courts become our de facto government, able to decide all questions for the people regardless of the will of the people or their elected representatives.

For those who believe that such a regine is preferable to allowing the legislature to decide in areas where the law does not tread, I propose a simple thought experiment. Let us assume that both Justice Stevens and Justice Ginsberg step down next year, and President Bush is able to put two highly conservative justices on the Supreme Court. Let us further assume that those justices band with Justices Roberts, Alito (assuming he is confirmed) and Scalia to not only overturn Roe v. Wade, but rule that abortion is no different than murder, so the states cannot decide for themselves whether or not abortion should be legal or illegal. (This is an unlikely outcome; while the Court may someday overturn Roe, it is implausible they would enact a 'reverse Roe' that continued to keep the issue from the hands of the people.) Would those who now defend the need for the courts to have the final say on these issues continue to defend the court's prerogatives? Perhaps a few might, but the majority would denounce the Court's decision and would probably not hesitate to undermine the legitimacy of court decisions in the absence of clear guidance in the law and Constitution.

While that example is unlikely, the issue that underlies it is not. If the courts get the final say on issues that are not clearly defensible in law, the United States is nothing but an oligarchy. There was an old saw that the best form of government is a benevolent dictatorship, because a benevolent dictator would be able to do what is right for the country without having to worry about getting support for his programs. This thesis sounds plausible on the face of it, but it fails to address the question: what happens when the dictator is wrong? The answer is that he takes the country down the wrong road, and there is no recourse. Having courts that can overrule the legislature on any point leads to the same problem. If the courts are ruling the way you personally prefer, it can be easy not realize the danger. But once the courts take the power to run the country, there is no guarantee they will continue to rule the way those people prefer.

Leaving questions like abortion in the hands of the state legislatures is emotionally unsatisfying. Both sides will be unhappy, because the states will have laws that run the gamut from abortion on demand to no abortions at all. But emotional dissatisfaction aside, by leaving power in the hands of our elected representatives rather than in an unelected elite, we retain the ability to change the laws. Logically it is preferable to retain power among bodies that can be influenced to change bad laws than to place power in bodies that are immune to such influence and will leave us stuck with bad decisions for decades.