Ponnuru, Festival for Pro-Lifers?

In the New Republic Online, Ramesh Ponnuru, normally an editor at the National Review, offers a rebuttal to TNR's long-stated editorial view that the overturning of Roe v. Wade would be a godsend to liberals. The counterintutive TNR position, defended most notably by Jeffrey Rosen, suggests that because Roe occupies such a crucial symbolic and galvanizing role in the pro-life movement that its repeal would both (a) remove a burr from the right-wing behind, and (b) cause them to overreach in banning abortion procedures generally supported by the public, thus creating a strong pro-choice backlash. Ponnuru counters this argument by asserting that pro-lifers will do quite well in the post-Roe environment: pushing the issue back to state legislatures will keep the issue active while also giving pro-choice, blue state Republicans more wiggle room at the national level. As a result, abortion laws will gradually become more strict, especially in red states, as the public gets more accustomed to the changes and recognizes that the sky is not falling.

The most obvious weak point in this argument is the claim that the pro-life movement would embrace caution and moderation so as not to overplay its hand. Hmmm. . . . I wonder what pro-lifers he's been watching? Is there one example from the last decade when anyone in the GOP played it safe for fear of overreaching? One of the major premises of Ponnuru's argument is that the public may be less pro-choice than public opinion polls generally indicate. Most polls, for example, fail to distinguish between what Ponnuru calls the "moderate pro-life" position (allowing exceptions for rape, incest, and life of the mother), and the "moderate pro-choice" position (allowing a range of abortions but only in the first trimester). Polls thus show a large middle opinion that would uphold Roe with restrictions, yet without distinguishing what those restrictions are. Ponnuru believes that the pro-life movement, generally content with incremental changes, would be unlikely to go beyond the moderate pro-life view that he sees as the true majority preference. That sounds like fantasy or rhetoric to me.

I also wonder about Ponnuru's assumption that the moderate pro-life position is a politically stable one in practice. Aside from the fact that all of today's pro-life rhetoric posits "life" as an absolute right without qualification, there's the incentive problem that such a position would create once put into law. If abortions are only available to women who have been raped, or who suffer some other extreme circumstance like incest or likely death, what's the likely real-world consequence? "Rape! I was raped, I swear!" Now, maybe Ponnuru agrees with radical feminist Catharine MacKinnon, who has asserted that women simply do not make false claims of rape. But it seems to me that such a view would exempt women from the principle of rational self-interest that is one of the central premises of our culture and legal system. Not surprisingly, such a legal standard would be especially burdensome on men, and since men still hold the vast majority of elective offices, I suspect that this line will be a hard one to maintain over time, thus creating pressure for either the moderate pro-choice or strong pro-life positions. As an aside, let me say that I've long had a strong sympathy for the moderate pro-life position, which, at least at a purely intellectual level, strikes me as the most sound moral position. (That's a controversial subject for another post.) I'm just dubious that it can work in practice.

Finally, my last problem with Ponnuru is that he neglects the powerful role that Roe plays in driving other issues not directly related to abortion. In particular, Roe is the one and only solid plank in the GOP's moneymaker claim that the federal judiciary is dangerously "activist" and "liberal." Even if the pro-life movement survives Roe's repeal intact, that little bugaboo is unlikely to remain. And if pro-lifers do win lasting policy victories in red states, they'll instantly lose the one issue that has given the GOP momentum in consolidating the South and West, at least in the aftermath of the declining political salience of racial backlash. In other words, Ponnuru dreams that abortion can continue to work as a successful GOP "wedge" even after the status quo has completely flipped. If you believe that, I've got some Iraqi WMD to sell you--cheap.

[Postscript: Cass Sunstein has just posted a nice rebuttal to Ponnuru at TNR, making most of the same points I did. Of course, he says it better, but I take some comfort in having gotten the argument to you at FFB first. The one point of mine he leaves out is the one concerning the perversive incentives of the "moderate pro-life" position, where I was trying, apparently unsuccesfully, to be both provocative and a little offensive. Oh well, maybe next time.]