THE HARD TO SPLIT DIFFERENCE. Jacob Sullum notes an abortion prohibitionist going off-message in Louisiana. "I had a strong belief that we could finally protect the innocent life of an unborn child," said state Senator Ben Nevers. "This is about the U.S. Constitution granting every person the right to life."
It's politically inconvenient for all concerned, but the implication here that the pro-life goal should be a nationwide, judicially enforced blanket abortion ban seems correct to me. I'm not a fan of judicial review as an institution. But, obviously, it's an institution we have in the United States. Under the circumstances, if a fetus is legally a person, then I think permitting abortion is pretty clearly unconstitutional and not something that can be "left up to the states." We wouldn't let California pass a law saying murder is illegal unless the victim is Mexican. Mexicans are people (someone should tell Lou Dobbs) so they're due the equal protection of the laws. If fetuses are people, then they deserve it as well. Conversely, if fetuses aren't people (seems right to me), then even though the constitution "doesn't say anything" about abortion, it's obviously a huge curtailment of individual liberties to seriously regulate how a woman must treat a non-person located inside her body.
Clearly, that all-or-nothing situation cuts against a widespread sense that such a controversial issue ought to be handled via legislative compromises rather than judicial decisions, but that really is the logic of the situation, given judicial review.
--Matthew Yglesias
