Please bring the abortion issue to the legislatures

Hadley Arkes in First Things discussing the recent partial-birth abortion decision and the push of pro-choice politicians to codify abortion rights at the legislative level.

But behold: With this panicky recoil from the holding in Carhart, the liberals are now behind the push to have the states start legislating again on abortion. With each move, they affirm the premise that the legislatures may indeed legislate on this subject. Their aim, of course, is to vindicate the right to abortion, but they will find that, as they try to shape that right, they will also be marking, unavoidably, the limits of abortion. And those limits, they will discover, will be drawn in far less broadly than any "limits" that can be found in the law of abortion as it has been shaped by the federal courts. The champions of abortion rights fancy they are taking the initiative, resisting the Court that has been altered now by the presence of John Roberts and Samuel Alito. But in the face of these initiatives, the pro-life side might well bring back that old line from Br'er Rabbit in the Uncle Remus stories: "Please don't throw me in that briar patch." But, of course, Br'er Rabbit, in the briar patch, was in his element. For the liberals to bring the issue of abortion into the arena of politics, in the legislatures, is to bring us into the briar patch, where they are likely to suffer some disagreeable surprises....

For the pro-lifers, the quibbling over trimesters touches no issue of principle, for the child does not undergo any change in species, or any morally relevant change, in the shift from the first trimester to a later one. Still, a deliberation in a legislature, even in New York or New Jersey, may find legislators trying to confine, or pretend to confine, abortions to the first trimester. But once that move is made, they would be open to the move to forbid abortion after the first evidence of a beating heart. In one recent survey, 62 percent of the respondents professed to be opposed to abortion after the evidence of a beating heart.