response to paulsen -Reply

[Fred Gedicks]

The latest issue of Lingua Franca has a short article quoting both sides
regarding the Berg/Himmelfarb resignations in protest over the recent
First Things Symposium.  One of the people quoted notes that  to accuse
the Court of having "usurped" democratic prerogatives with its abortion
decisions, as do Neuhaus, Bork, et. al.,  is confusing, if not disingenuous;
if a national referendum were held and abortion rights won, Neuhaus and
others who oppose abortion on the basis of natural rights arguments
would hardly be placated.

This seems to me an excellent observation.  Poll and other opinion data on
abortion are notoriously unreliable, but at least two things are clear:  (1)
neither prolife nor abortion rights advocates have an overwhelming
majority on their side of the issue, and (2) numerous states, perhaps
some very large ones (e.g., CA & NY?), would adopt Casey as a matter
of state law if given the opportunity.  Thus, even if the Court withdrew
from abortion adjudication and turned the issue back to the states, a large
portion of the American population, conceivably a majority, would
continue to enjoy largely unrestricted access to abortion as a matter of
state law.

My question for Rick is whether he would be satisfied with such a state
of affairs.  (From the character of his arguments, I suspect he wouldn't,
although Bork might be.)   If Rick *were* satisfied with turning the issue
back to the states,  then Supreme Court "usurpation" of democracy really
is at the heart of the controversy.  If not, however, then isn't usurpation
just a  red herring, a handy weapon picked up against an act deemed
deeply immoral on other, independent  grounds?  And then isn't Rick's and
Neuhaus's  argument with the Court not that it overstepped its institutional
bounds, but rather that it made bad (natural law?) arguments in favor of a
constitutional right to privacy encompassing the right to abort?

Fred Gedicks
BYU Law School
gedicksf at lawgate.byu.edu