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Commentary: Abortion battle ought to go back to the states

This article first appeared in the St. Louis Beacon, May 21, 2009 - I recently experienced an epiphany of sorts. This development was something of a surprise as I've reached a point in life where blinding revelations of transforming truth are rare and the world-weary "been there, done that" response is common. The occasion of my insight was a news story televised last Saturday about preparations for Barack Obama's commencement address at Notre Dame the next day.

What could possibly go wrong when you slate a pro-choice Protestant with a Muslim name to speak to the graduating class of a pro-life Catholic university? Turns out, quite a bit.

The news report featured the predictable contretemps found at abortion demonstrations. Slogans were chanted, posters waved, irreconcilable opinions were shouted into deaf ears and protestors were arrested for a variety of minor offenses while strident invectives were traded across the police barricades that separated the two sides of the "debate." Nothing out of the ordinary here.

What struck me was the departing shot of the stately campus on a beautiful May afternoon with a small aircraft circling overhead, slowly pulling a giant poster of an aborted fetus across the tranquil azure sky. When I saw the flying fetus, something inside me snapped.

Though I've been writing professionally for more than 12 years and have tackled a variety of controversies both large and small, I've always avoided abortion like the plague. That's because there's precious little to say on the matter that's going to change anybody's mind.

One's position on abortion is a fundamentally normative statement -- an expression of personal morality and religious/cultural values that does not lend itself to rational argument. Those who believe the process to be murder will remain unalterably opposed; those who believe the state has no place in the womb are equally adamant.

The rest of us, who think that abortion terminates a human life -- or, at least, the potential for one -- but recognize that circumstances can sometimes justify homicide, have little to offer but muddled conjecture. The civil libertarian in me respects a woman's right to control her own body; the former altar boy fears the wrath of God.

I would have remained publicly mute on the subject were it not for the specter of the flying fetus, which convinced me that this fight is being waged in the wrong arena. After all, politics is alternately defined as the "art of the possible" or the "art of compromise" and there's no possible compromise here.

Obama's appearance at ND should have been a cause for celebration. As the Catholic Church was an early and vocal proponent of civil rights, having the nation's first African-American president address the graduating class should have been a reason to celebrate the unifying human progress he represents. Instead, because of the divisive issue of abortion, it became yet another opportunity to examine our irreconcilable differences.

Maybe it's time for the federal government to get out of the gynecology business.

In the early years of the United States, abortion was permitted until the "quickening" -- the point at which the mother could feel the first movements of the unborn child. In 1828, New York passed the first state law restricting the procedure. By the dawn of the 20th century, it had been outlawed nation-wide.

Largely ignored in the furor over Roe v. Wade is the fact that by 1970, five states -- New York, California, Washington, Alaska and Hawaii -- had re-legalized abortion. These states acted without benefit of judicial fiat from the federal courts. They simply debated the issue on its own merits, then repealed the laws banning the practice -- precisely the way that the founders intended the system to work. 

Had the rest of the union been allowed to determine its own destiny, different states would have likely reached different conclusions about how best to proceed. The resulting patchwork of laws would have made for uneven abortion rights, but at least the applicable law would have reflected the prevailing values of the affected jurisdiction.

Instead, the 1973 Roe decision nullified duly enacted anti-abortion laws in the remaining 45 states and the District of Columbia by proclaiming a newly discovered constitutional right to terminate pregnancy, essentially upon demand. The decidedly undemocratic manner in which this mandate was reached had to contribute to the resentment it engendered.

In the ensuing nine presidential elections, candidates ran for office as either pro-life or pro-choice, while desperately trying to mitigate their stances to appeal to the broadest base possible. For all of that, nothing much changed regardless of which side won the Oval Office. Roe is a constitutional stretch that has outlived the tenures of both friend and foe.

Yet, despite a dearth of practical impact, a candidate's position on the issue remains a paramount concern for many voters. In one of the more memorable moments of last fall's debates, the candidates were asked at what point in fetal development they believed human life began. Great: With the Republic on the brink of economic collapse and two foreign wars raging, its would-be saviors argued metaphysics. Anybody seen Nero's fiddle?

Getting abortion off the national agenda would not be easy. Because Roe formulated a woman's prerogative as a constitutional right, the only avenues of escape are a constitutional amendment or a Supreme Court reversal of the original decision. The former process is intentionally burdensome and would enflame even further acrimony, while the latter option, given the current make-up of the court, looks like a 5-4 toss-up that could go either way.

Of course, even if we could shift the abortion issue back to the states, we would hardly solve the substantive problem. But it would return the debate to the venue the founders envisioned for such matters. In doing so, it would also remove the shadow of the flying fetus from the Seal of the Presidency.

M.W. Guzy is a retired St. Louis cop who currently works for the city Sheriff's Department. His column appears weekly in the Beacon.

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