Abortion and Gay Marriage: The Perils of Judicial Activism

It's no secret that abortion remains one of the thorniest political and moral issues in our society. There are those who are ardently, uncompromisingly "pro-life," who argue that at conception, a human life begins, and so to end it at any stage is murder, the taking of an innocent life. There are others who are vehemently "pro-choice," believing that, no matter what the circumstances, a woman has a right to choose whether or not to carry a pregnancy to its completion.

Most Americans fall somewhere in between these two poles. Some oppose abortion but would make exceptions in cases of rape, incest, or when the mother's life is genuinely at risk. Others favor keeping abortion legal, but doing everything in our power to lower the number of abortions that occur by educating teens about pregnancy and encouraging women to have the child and give it up for adoption. And still others distinguish between aborting the unborn child (fetus?) early on in the pregnancy versus a late-term or partial-birth abortion.

I have to confess, my own views on the issue are clouded by a number of moral concerns. I think Roe v. Wade was an awful Supreme Court decision, not necessarily because I disagree with the decision to legalize abortion everywhere in the US, but because the decision a) took a states' rights issue and made it into a federal one and b) took an issue that should have been resolved at the ballot box or through our elected representatives according to the popular will and instead resolved it by judicial fiat.

In other words, the Supreme Court's ruling that state bans on abortion violate the Constitution is preposterous. Nowhere in the Constitution is abortion mentioned directly or indirectly...so why should state legislatures, acting on behalf of that state's voters, not be able to set an abortion policy favored by the people of that state? The 10th Amendment should have been sufficient to cause the Supreme Court to defer to the states on the abortion issue. As the 10th Amendment states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Instead of offering a ruling in line with the Constitution, the Supreme Court did an end run around the Constitution and invented a right to abortion.

Since I maintain that abortion ought to be a state by state issue, I am also an outspoken opponent of a constitutional amendment to ban abortion. My position on gay marriage is essentially the same, and luckily, the Supreme Court hasn't pulled a Roe v. Wade on this issue (yet). States remain free to legalize or ban gay marriage without interference from the federal government. This is as it should be. The problem here, though, is that states are legalizing gay marriage through the unelected, unaccountable judiciary rather than through the proper legislative channels. While Roe v. Wade is an affront to the US Constitution AND self-government (turning a state issue into a federal one, making policy through the court rather than the elected branches of government), the gay marriage issue has thus far only been an attack on the latter. Gay marriage, like abortion, is an issue that should be left up to the states...and, equally importantly, up to the PEOPLE in those states, not a small cadre of judges who wake up one day and capriciously decide to alter existing law without regard for the popular will or government BY the people and FOR the people.

Ultimately, if I had to characterize my political convictions about social issues, I would call them moderate. I detest partisan ideologues on both sides who resort to simplistic name-calling over these issues. Same-sex marriage and abortion are both morally complicated issues with serious consequences...and they call for a civil, intelligent discussion. That means refraining from branding someone who opposes legalizing same-sex marriage a close-minded, intolerant bigot before you give them a fair hearing. It means listening to someone explain why they are "pro-choice" instead of dismissing them as an evil baby-killer.

Ultimately, though, these issues should not be the focus of presidential campaigns or even campaigns for US Congress. They should be decided within the states, in accordance with the Constitution. And when they are decided on a state by state basis, the policy decision ought to emanate from the popularly elected branches of government (passed by the legislature, signed by the governor), not from within the walls of an insulated court where a handful of men and women in robes are allowed to dictate what the law is or should be. Judicial activism poses an enormous threat to self-government, and it must be vocally opposed by all citizens who wish to govern themselves.