Abortion nimbleness

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Be all things to all people. That is the summum bonum of a political campaign.

Candidate views on abortion present a supreme challenge. The electorate is divided between pro-life, pro-choice, and syncretic camps. Appealing to all three simultaneously is like squaring the circle, or being and not being at the same time.

U.S. Senate candidate Lt. Gov. Michael Steele, however, was up to the task during last Sunday's NBC's "Meet the Press" interview with host Tim Russert. If there have been superior displays of elusiveness in the 2006 election season, like a touchdown run of the Colt's Lenny Moore, they do not readily come to mind.

A constitutional right to an abortion was decreed by the United States Supreme Court in Roe v. Wade (1973). The precedent was reaffirmed in Planned Parenthood v. Casey (1992), which makes it akin to a "super-precedent," entitled to special reverence. Neither Congress nor any state under the Roe-Casey rulings may restrict abortion choices of adults or mature minors. The doctrine of stare decisis instructs the Supreme Court to follow its Roe-Casey holdings absent a showing of clear error, as when Brown v. Board of Education (1954) overruled the separate-but-equal doctrine of Plessy v. Ferguson (1896).

Mr. Russert inquired of Mr. Steele whether he hoped the Supreme Court would reverse Roe. A reversal is the cherished ambition of the pro-life camp, but the ultimate nightmare of pro-choice voters. Mr. Steele's intellectually untidy response deftly offered both sides encouragement. He first insisted Roe should be left undisturbed in reliance on stare decisis: "The court has taken the position, which I agree, stare decisis, which means that the law is as it is." But the candidate immediately retreated by insinuating states are properly fashioning abortion policy irrespective of Roe: "[T]his is a matter that ultimately is going to be adjudicated at the states. We're seeing that. The states are beginning to decide for themselves on this and a host of other issues, and the Supreme Court will ultimately decide that."

If Mr. Steele was honest in declaring his agreement with stare decisis, however, he should have disparaged state regulation of abortion. The central meaning of Roe is that states are powerless under the Constitution to place an undue burden on women who choose abortion. Mr. Steele concealed his inconsistency with semantic legerdemain akin to the shell game. His answer thus befuddled Mr. Russert, who pleaded for an eclaircissement: "But you hope that the court keeps Roe v. Wade in place?

A response was averted that might have alienated one or more of the three abortion camps. Declining to express his personal view of Roe, Mr. Steele galloped off into speculating about what the Supreme Court might do: "I think the court will evaluate the law as society progresses as the court is supposed to do."

Mr. Steele earlier in the interview, however, had endorsed stare decisis, which means the decision should remain irrespective of social change to promote constancy and predictability in the law. He could derive solace, nonetheless, from Ralph Waldo Emerson's defense to of intellectual anarchy: "A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines."

Mr. Russert remained mystified, and inquired once more about the Senate candidate's view of Roe: "But what's your position? Do you want [the Supreme Court] to sustain it or overturn it?"

With cleverness reminiscent of Cicero, Mr. Steele responded that while he believes Roe was wrongly decided (throwing a bone to pro-lifers), the courts will ultimately decide whether the case should be overruled and abortion issues restored to the states (giving some reassurance to the pro-choice camp): "I think Roe v. Wade is a matter that should have been left to the states to decide ultimately, but it is where it is today, and the courts will ultimately decide whether or not this gets addressed by the states, goes back to the states in some form, or they overturn it outright."

Still exasperated by Mr. Steele's masterful nonresponsiveness, Mr. Russert asked again: "Is it your desire that [the courts] keep [Roe] in place?" Mr. Steele retorted with unexcelled inconclusiveness, like a Chekhov short story: "My desire is that we follow what stare decisis is at this point, yes [but tomorrow?]."

Even if Mr. Steele loses his Senate bid, he will still have won a place on the Mount Rushmore of Abortion Nimbleness.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.