Judge Bork gave a fascinating interview to Stuart Taylor Jr. for Newsweek about the Sotomayor nomination. It’s well worth a read for a number of reasons — for example, he cautions Republicans that a filibuster would be unwise. But I want to draw special attention to what he said about abortion. Taylor asked him, “Was it your view that the law on abortion should be left totally to the democratic process?” Here’s Bork’s response:
I oppose abortion. But an amazing number of people thought that I would outlaw abortion. They didn’t understand that not only did I have no desire to do that, but I had no power to do it. If you overrule Roe v. Wade, abortion does not become illegal. State legislatures take on the subject. The abortion issue has produced divisions and bitterness in our politics that countries don’t have where abortion is decided by legislatures. And both sides go home, after a compromise, and attempt to try again next year. And as a result, it’s not nearly the explosive issue as it is here where the court has grabbed it and taken it away from the voters.
The question of whether policy decisions should be made by judges or by legislators is pretty much settled, at least as far as conservative jurisprudence is concerned. But as a convert to the pro-life cause of relatively recent vintage — over the past decade or so — I want to offer a different perspective on the sociology of abortion politics. Judge Bork is quite right that abortion would be a “less explosive” issue if it were turned over to the legislatures; but we should be careful what we wish for. Isn’t it true that the pro-life movement is much more vigorous in the U.S. than it is in the other countries the judge mentions? (He doesn’t name them, so I’m assuming he’s referring to European countries where abortion is relatively non-controversial.) “Divisions and bitterness” are regrettable, and I do indeed regret them, but doesn’t avoiding them sometimes exact too high a price? (A similar issue arose in President Obama’s Notre Dame speech, when he called for fair-minded words and not dehumanizing one’s opponents. Who could object to that? But there remains the danger that this search for social comity can be used as cover for defining pro-life advocacy out of the bounds of the national conversation.)