response to paulsen -Reply

[Brad Pardee]

On Mon, 27 Jan 1997, Fred Gedicks wrote:

> 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?

I would not wish to speak for Rick, but my own view (as one who is
pro-life and feels that the Court overstepped its bounds) is that this is
not an either/or situation because I see problems with both content and
procedure.  If the Courts turned it back to the states, which then passed
laws permitting abortion largely as it is permitted now, I would still be
displeased with the fact that abortion is legal, but at least the
procedure would be legitimate.  In such a case, I would turn my efforts
to persuading the electorate and their representatives to my view, which
is at the heart of the democratic process.

This doesn't mean, however, that I want the Courts do their usurping on my
behalf.  On the contrary, any time the Courts usurp the democratic
process, even if they did so to rule in my favor, I am going to be
displeased with the result.  A wrong thing done is still a wrong thing,
regardless of whether it benefits me or harms me.  The usurpation
question, however, is a separate question from whether the prolife view is
reflected in the law.

Brad Pardee