THE ABORTION CASE taken up by the Supreme Court last week didn't involve a challenge to Roe v. Wade, and there is no chance the court will use it to topple that 1973 landmark. Ayotte v. Planned Parenthood dealt only with the terms of a narrow abortion regulation -- a New Hampshire law requiring that a parent be notified before an abortion is performed on a minor.
Nonetheless, the air was heavy with the usual absolutism. On the day of the oral argument, protesters outside the Supreme Court building carried signs reading "Keep Abortion Legal" and "Stop Abortion Now" -- the slogans, respectively, of those who want no retrenchment from the virtually unlimited right to abortion that Roe created, and of those who want virtually all abortions banned.
But those aren't the only two choices, and they aren't the choices most Americans would make. As poll after poll makes clear, the public is ambivalent on this subject. Most people believe that abortion is a great evil, but most also believe that abortion decisions should be left to a woman and her doctor. At the same time, a large majority also supports regulating abortion in specific ways -- by mandating waiting periods or preabortion counseling, for example, or by requiring parental notice or consent for a minor's abortion.
No rational abortion policy can encompass all those stands. But then, Americans are out of practice at setting abortion policy. They haven't been allowed to do so for more than 30 years, ever since Roe struck down the laws of 50 states, took the issue away from voters and lawmakers, and carved a practically unlimited "right to choose" into constitutional granite.
Far from settling the matter once and for all, Roe turned abortion into perhaps the most unsettled subject in American politics. It certainly polarized the two parties. Republicans became officially and explicitly antiabortion, writing language into their national platform that proclaims the inviolable right to life of the unborn and endorsing a constitutional amendment that would ban nearly all abortions. Democrats became adamant defenders of abortion on demand, with their platform taking a hard line against any restrictions at all: "We stand proudly for a woman's right to choose . . . regardless of her ability to pay."
Neither position would seem to make much sense politically, since neither reflects the views of the ambivalent American mainstream. But by yanking abortion from the democratic process, Roe freed each party to cater to its extremes. Most of us now take this political distortion for granted: The Democrats insist that Roe is sacred and mustn't be tampered with, while the GOP blasts it as rampant judicial activism, ripe for overturning.
But do the Democrats really do themselves any favors when they defend Roe so ardently?
Look again at the hardline positions each party is formally committed to. Republicans supposedly favor a near-total ban on abortion -- something most voters would never support. As long as Roe remains in force, the GOP's stand is cost-free. Republicans can talk all they like about stopping abortion, safe in the knowledge that they will never have to vote for legislation actually banning it. All they can do about abortion now is try to restrict it at the margins -- by halting partial-birth abortions, for example, or requiring parental notice. In other words, by promoting the kind of reasonable regulations that most voters do support.
Not so for the Democrats. Their extreme stance -- unrestricted abortion on demand, basically -- does indeed extract a political price, since it forces them to oppose those same popular regulations. The public overwhelmingly favors a ban on partial-birth abortions, but Democratic lawmakers, in their post-Roe intransigence, vote against it. Americans support parental notice; Democrats oppose it. Over the years, the result has been a prolife migration to the Republican Party, which is far stronger today than it was before Roe was decided. "The biggest paradox," commented The Wall Street Journal recently, is "that Roe has been a disaster for the Democratic Party that has made its defense a core principle." (The Journal's James Taranto has detailed this disaster in an article titled "The Roe effect.")
By the same token, an overruling of Roe would be a boon to the Democrats. Abortion would return to the state legislatures, where Democrats, free at last of the Roe albatross, would no longer be compelled to stake out the most extreme prochoice positions. Instead it is Republicans who would be squirming, prodded by their prolife base to make abortion illegal, but knowing that any such attempt would be politically catastrophic.
Of course the case for or against Roe -- and for or against abortion -- is not, fundamentally, about politics. But to the extent that the Democrats' passion for Roe v.Wade is political, they might want to rethink their premises.
(Jeff Jacoby is a columnist for The Boston Globe.)