April, 2005

Charles Krauthammer is one of my favorite conservative columnists and his Judicial Insanity piece in the Washington Post takes a fairly balanced look at Tom DeLay and others' recent foaming at the mouth concerning judicial activism.

Until the sixth paragraph, when he finally gets down to Roe vs Wade. He's still balanced, but I think he's wrong.

He asks “What other advanced democracy would radically legalize abortion by judicial decree rather than by democratic will expressed through legislatures or referendums?”

Well Charles, one answer to that is that it’s always been the duty of the courts to represent those who are unable to get a fair hearing by other means. Legislatures for the most part control access to referendums. Abortion legislation has been unrelentingly stopped dead in the male dominated state and federal legislatures, as well as by by male dominated religious institutions. There is not even a particle of doubt that if men bore children this legislative access to abortion would have been law for centuries.

Thus approximately 160 million American women have been essentially disenfranchised on this issue.

Krauthammer quotes Supreme Court Justice Ruth Bader Ginsburg’s comment that Roe vs Wade “halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue.” She is probably right, but reform was moving at a glacial pace and meanwhile the rich were getting their abortions in foreign countries and the less rich were maimed and/or dying in back-alley butcher shops.

Krauthammer makes an interesting point in comparing Roe, which he judges to be interference by the courts, to Brown vs Board of Education, which he considers an entirely proper, even glorious end to Jim Crow. “But Brown was different,” he writes. “The race cases were cases of a disenfranchised citizenry. The representative branches of government were legitimately superseded because they were not representative. Millions of blacks could not vote. Millions of blacks could not participate in civic life. The courts had to act to end this aberration and injustice, and, to their glory, they did.”

Charles, you’ve just made the case for Roe.

There are more ways to be disenfranchised than not being able to vote. To be female and because you are female to be stopped time and again at the gates of the church and the portals of our legislative assemblies is to be disenfranchised in the most accurate and penetrating definition of the word.

No man would stand for such abuse and no woman should have to, not ever again.

Get out of the Archives and read what Jim's writing today