Whenever we talk about law we espouse a particular jurisprudential philosophy whether we know it or not. For instance, someone who believes Marijuana should be legal, but does not smoke it because he or she is afraid of getting in trouble, is expressing a certain philosophical view about the law; namely, that law is to be followed because of the possibility of punishment. On the other hand, someone may believe the marijuana laws are wrong but not smoke it because the law as it is written down by the legislature should be followed because it is the law or because his or her particular religious beliefs require one to follow the law. No matter what someone’s opinion is on law, there is a philosophy underlying it.
To talk about the abortion debate as it pertains to the United States without reference to the law of the United States is to espouse a dangerous jurisprudential philosophy. It is a philosophy that a particular interest is so important that the law is not wrong or misinterpreted, but irrelevant. The consequences of this view are obvious; who determines what interests are so important that the law is no longer relevant? Is it those who argue for a woman’s right to choose? Is it President Bush when he authorizes wiretapping or claims that there is no right to habeus corpus?
I can understand why people do not talk about the law when it comes to the abortion debate. First, the law is, to most people, nowhere near as interesting as the underlying moral issues. Second, most people never take the time to learn abortion law. They may have a vague sense of “rights” and “amendments” but no real understanding of just how the Constitution restricts states form banning abortion. It is rare to run into a non lawyer who understands that if Roe is struck down it does not automatically make abortion illegal (though that will be the practical effect in most states).
I spoke to my Constitutional Law professor about this issue today, and he said something that was interesting: to hold the view that the democratically elected legislature should decide the issue is certain political death. Those on the pro-life side will be disgusted that you would stand for a state keeping abortion legal. Those on the Pro-Choice side will be disgusted that you would stand for a state criminalizing abortion. For instance, I think that Roe is an extremely weak decision, but I am afraid to say that around pro-choice people because it is tantamount to saying “abortion should be illegal everywhere and anyone who engages in it should be put to death.”
I could accept someone coming out and explicitly stating that they hold the uber-pragmatic view that they think their interest is so important that they will pay any price to protect it. The problem is that many people are impliedly espousing this view without even realizing it. If you are willing to accept the view that a woman’s autonomy is so important that the law is irrelevant, then accept the consequences of your view; don’t refer to the Constitution next time President Bush authorizes wiretapping or when someone’s right to speech is being infringed upon. Be philosophically consistent.
The talk I have seen on both sides of the abortion debate since Gonzales v. Carhart has been maddening. No one thinks the law is relevant. People think that if the Supreme Court allows the legislature to decide something is the same thing as the Supreme Court deciding it themselves. It is not the same thing. It places the issue back in the hands of the people. If you think that this particular issue should not be in the hands of the people, then point to legal authority about why this is so, and if you cannot (or don't want to) point to legal authority, explain why we don’t have to and then understand the implications.
We do not live in a society where the law is not written down and impossible to know. The benefit of having a written law is that we as a nation know what the law is, and if we disagree with that law we can change it. It provides us with a kind of consistency, so that over time we can determine what the strengths and weaknesses of the law are and adjust it accordingly. It is not something we should ignore when it is convenient for us.