First Things: "Don’t Throw Us Into That Briar Patch"

Hadley Arkes writes at the First Things blog On the Squrare that those who, in response to the Carhart decision, are now seeking to protect Roe's unlimited "right" to abortion via the state legislatures are actually playing right into the hands of pro-lifers:

... But now the surprise of the season. The pro-life lawyers are still wringing their hands, calculating that they will need one more vote on the Court, one more retirement, before Roe v. Wade can be overturned. The holding in Gonzales v. Carhart was the narrowest of holdings: The Court mainly blocked the move in the lower courts to strike down laws on abortion in facial challenges. The holding may not work actually to save any lives. With this one grisly form of abortion barred, the abortionists may simply return to older, familiar methods of killing a child in the womb, whether by poisoning or dismemberment. But the decision of the Court was momentous, for it sustained the federal act as the second legislative act that would restrict abortions. (The first was actually the Born-Alive Infants’ Protection Act in 2002, an act that essentially bans the “live-birth” abortion, in which a child is delivered alive and put aside to die.)

And yet even that modest bill, with that narrow holding, was quite enough to spook the partisans of abortion. They have seen, in Gonzales v. Carhart, a major step to the overruling of Roe. And that has spurred them now to seek legislation in the states to enact, in a statute, the rights of abortion articulated in Roe and its sequelae. But, as they do that, they would have brought about what the conservative lawyers have been proclaiming for years as their main, strategic objective; the objective for which they are still awaiting another retirement from the Court, and another battle over confirmation.

And so Governor Spitzer in New York has declared his intention of seeking a statute to protect the right to abortion against a Supreme Court that can no longer be trusted. A similar move is afoot in Maryland, and we can count on the liberal chorus quickly picking up this tune.

But behold: With this panicky recoil from the holding in Carhart, the liberals are now behind the push to have the states start legislating again on abortion. With each move, they affirm the premise that the legislatures may indeed legislate on this subject. Their aim, of course, is to vindicate the right to abortion, but they will find that, as they try to shape that right, they will also be marking, unavoidably, the limits of abortion. And those limits, they will discover, will be drawn far less broadly than any “limits” that can be found in the law of abortion as it has been shaped by the federal courts. The champions of abortion rights fancy they are taking the initiative, resisting the Court that has been altered now by the presence of John Roberts and Samuel Alito. But in the face of these initiatives, the pro-life side might well bring back that old line from Br’er Rabbit in the Uncle Remus stories: “Please don’t throw me in that briar patch.” But, of course, Br’er Rabbit, in the briar patch, was in his element. For the liberals to bring the issue of abortion into the arena of politics, in the legislatures, is to bring us into the briar patch, where they are likely to suffer some disagreeable surprises.

For once the issue is opened, the pro-life side can readily bring forward a host of amendments, containing serious restrictions on abortion that are supported even by people who call themselves pro-choice...

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But these and other questions are simply bound to come forth as soon as the issue is opened; and the liberals, in their fury over Gonzales v. Carhart, seem resolved to bring the issue into the open arena of the legislatures. Blinded by their own passions, they don’t seem to recognize that they are doing the work of their own adversaries. They find themselves backing into a kind of jujitsu, but their blindness may be matched by the slowness of the pro-lifers in recognizing what is before them: that in playing defense here, they can enjoy some powerful leverage.

[More]

(emphasis added)

My Comments:
Definitely read the whole thing.