Obama's wink and nod on abortion

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Michael Gerson
Copyright 2010
Thursday, April 22, 2010; 3:41 PM

During an Oval Office meeting with Senate leaders yesterday, President Obama symbolized the sorry, misleading state of public argument about the Supreme Court. He insisted that he has no ???litmus test??? on abortion for his Supreme Court nominee, while asserting that his choice will interpret ???our Constitution in a way that takes into account individual rights, and that includes women???s rights. And that???s going to be something that???s very important to me.??? So no litmus test on abortion -- except the protection of ???women???s rights,??? which everyone in the room understood as a reference to abortion. Obama???s pose of neutrality came with a theatrical wink and nod. Everyone got the joke. Of course a Democratic president is going to propose a Supreme Court nominee committed to abortion rights. Don???t Republican presidents do the same on the other side? Not really. There are few mainstream voices in conservative legal circles that would urge the Supreme Court to apply 14th Amendment protections to developing life from the moment of conception. All the conservatives currently on the court would merely allow democratic processes on abortion to work in the states -- as they were working before Roe v. Wade. The conservative Supreme Court litmus test (and there is one) concerns the return to a democratic process that may or may not result in restrictions on abortion ??? a process that would allow liberal abortion laws to remain in place in most of America. The liberal Supreme Court litmus test (and there is one) mandates an outcome -- a general abortion right -- that cannot be democratically overturned. The conservative litmus test allows pro-choice Americans to fight for their views and, if they persuade a majority, prevail. The liberal litmus test prevents pro-life Americans from prevailing, no matter what a democratic majority is persuaded to believe. In spite of his protests, Obama is employing and defending a litmus test, which insists on a certain controversial constitutional interpretation, which imposes a legal and ethical outcome on the entire country.


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