Moderate by Moderate Left

The problem with the cult of moderation is that it requires there to be two extremes equidistant from the middle line of wisdom, or else it must define the two opposing groups as the extremes, no matter where they actually lie. To present his — certainly welcome — "compromise" position of sending abortion policy back to the states, Radly Balko must write as if the current advantage to one side is not relevant in comparing the two and as if neither of the two supposed extremes has ever promoted such a solution.

Consider this instance of ostensible even-handedness on his part:

Hendershott criticizes the pro-choice movement for trying to suppress information that might injure its cause. In one particularly interesting passage, she discusses General Electric's remarkable "4D" ultrasound imaging system, a technological innovation that renders striking images of fetuses in the womb. In 2002 G.E. marketed the product in a national campaign aimed at young women, showing expectant mothers bonding with their unborn children while Roberta Flack sang "The First Time Ever I Saw Your Face." The technology was enormously popular. 4D ultrasound stations even began to appear in shopping malls.

Abortion rights proponents leapt into action, fearing that too-real images of unborn fetuses might cost them popular support. After pressure from pro-choicers, G.E. pulled the TV ads, pulled testimonials from its website, and began marketing the technology solely for medical purposes. Several states banned the use of ultrasound for "nonmedical" purposes, including New York, where then–Attorney General Eliot Spitzer subpoenaed 34 anti-abortion crisis pregnancy centers for "practicing medicine without a license" because they used the technology.

The 4D controversy is a striking example of how one side of the abortion debate used the law to suppress the flow of information to expectant mothers out of fear of what that information might do to their cause. But Hendershott has little to say about similar efforts on the anti-abortion side. Pro-life lawmakers, for example, repeatedly have attempted to prohibit physicians who receive federal funding from even discussing abortion with their patients, particularly at overseas military hospitals.

On one side, a major private company was cowed into minimizing the marketing of an "enormously popular" product, and an attorney general undertook a campaign against the product's users. On the other side? Some lawmakers "repeatedly have attempted" to attach strings to federal funds to doctors. Why, the two sides are practically mirror images! (Perhaps in a funhouse.)

The reality is that the federalist argument as been an organic part of the pro-life movement for at least as long as I can remember. That is why there is so much emphasis on simply overturning Roe v. Wade. Because of his desire to cleave a middle road, however, Balko insists that no mere erasure of the ruling would suffice:

For such a scenario to emerge, the Supreme Court would need to do more than overturn Roe. It would have to make it clear that the regulation of abortion is a police power reserved to the states, and that it will no longer entertain attempts to override abortion policy made by the states. That approach wouldn't be perfect, and it wouldn't satisfy the hard-core activists on either side of the debate, but it would be far preferable to what we have now. As it stands, the Supreme Court is one vote from overturning the decision, with two pro-Roe justices — Ginsburg and John Paul Stevens — generally considered the members most likely to retire.

Unfortunately, judging from the Court’s recent ruling in Gonzales v. Carhart (which upheld a congres­sion­al ban on “partial birth” abortions) and the fair-weather approach to federalism taken in cases like Gonzales v. Raich (which upheld a federal ban on medical marijuana), a decision overturning Roe probably would leave the door open to a national ban. The divisive debate would continue.

Divisive debate would continue, no doubt, upon the striking of Roe, but the method of abortion's nationalization must be considered: Only the judiciary can create laws without broad political wrangling. That is what makes it such a dangerous body once it becomes a tool for activism. The Supreme Court does not need to find compromise positions across the spectrum of opinion on a particular issue in order to decide its cases; it merely dictates the law.

The medical marijuana reference exposes Balko's inclination to make immoderate equivalencies: The legislative process came first, with the Supreme Court merely permitting it to stand. There's quite a difference — which one might call "democracy" — between legislative activism and judicial, and the same sequence of events when it comes to abortion is unlikely.

The fact that pro-life groups are constitutionally barred from significant successes at the state level has created incentive for them to act nationally. Were abortion to become a state matter again, the incentive would shift toward activism at that level. There would, no doubt, be a concerted push on both sides for the national solution that each favors, but here, it is the issue's divisiveness that ensures that it will stop at the states. At least in the near term, the only consensus that is likely to emerge via the democratic process is that the federal government oughtn't meddle.

And that's fine by me. I believe that the allowance of abortion is a horrible moral stain on our society, and I will argue against it at every tier from the personal to the international. At the same time, I believe in the process of public discourse and gradual change as the most effective way to minimize the stark manifestation of evil in our society. When the abortion debate levels out into a lower-key cultural battle for hearts and minds, with local victories achievable through discourse, grace can begin to show the maggotted bride called self-deception for what she is.