I suggested that we can find in Lincoln's anti-slavery rhetoric a coherent position that could serve as a model for pro-life politicians today. How would this rhetoric sound? Perhaps the best way to answer this is to provide a sample of what might be said by a politician devoted to a cause but no less devoted to building broad support for it. With the reader's indulgence, then, I will play that politician, making the following campaign statement:
"According to the Supreme Court, the right to choose abortion is legally protected. That does not change the fact that abortion is morally wrong. It violates the very first of the inalienable rights guaranteed in the Declaration of Independence—the right to life. Even many who would protect and extend the right to choose abortion admit that abortion is wrong, and that killing 1.5 million unborn children a year is, in the understated words of one, `a bad thing.' Yet, illogically, they denounce all attempts to restrain it or even to speak out against it. In this campaign I will speak out against it. I will say what is in all our hearts: that abortion is an evil that needs to be restricted and discouraged. If elected, I will not try to abolish an institution that the Supreme Court has ruled to be constitutionally protected, but I will do everything in my power to arrest its further spread and place it where the public can rest in the belief that it is becoming increasingly rare. I take very seriously the imperative, often expressed by abortion supporters, that abortion should be rare. Therefore, if I am elected, I will seek to end all public subsidies for abortion, for abortion advocacy, and for experiments on aborted children. I will support all reasonable abortion restrictions that pass muster with the Supreme Court, and I will encourage those who provide alternatives to abortion. Above all, I mean to treat it as a wrong. I will use the forum provided by my office to speak out against abortion and related practices, such as euthanasia, that violate or undermine the most fundamental of the rights enshrined in this nation's founding charter."
The position on abortion I have sketched—permit, restrict, discourage—is unequivocally pro-life even as it is effectively pro-choice. It does not say "I am personally opposed to abortion"; it says abortion is evil. Yet in its own way it is pro-choice. First, it does not demand an immediate end to abortion. To extend Lincoln's oncological trope: it concludes that all those who oppose abortion can do right now is to contain the cancer, keep it from metastasizing. It thus acknowledges the present legal status of "choice" even as it urges Americans to choose life. Second, by supporting the quest for alternatives to abortion, it widens the range of choices available to women in crisis pregnancies. Studies of women who have had abortions show that many did not really make an informed "choice" but were confused and ill- informed at the time, and regretful later. If even some of those reports are true, they make a case for re-examining the range of choices actually available to women.
Would a candidate adopting this position be obliged to support only pro-life nominees to the Supreme Court?To answer this, let's consider Lincoln's reaction to Dred Scott v. Sanford, the 1857 Supreme Court ruling that Congress had no right to outlaw slavery in the territories. Lincoln condemned the decision but did not promise to reverse it by putting differently minded justices on the Court. Instead his approach was to accept the ruling as it affected the immediate parties to the suit but to deny its authority as a binding precedent for policymaking by the other branches of the federal government. If he were in Congress, he said in a speech delivered in July of 1858, shortly before his debates with Douglas, he would support legislation outlawing slavery in the territories—despite the Dred Scott decision. In our analogy we need not follow Lincoln that far to see the valid core of his position. Yes, he was saying, the Supreme Court has the job of deciding cases arising under the Constitution and laws of the United States. But if its decisions are to serve as durable precedents, they must be free of obvious bias, based on accurate information, and consistent with "legal public expectation"and established practice, or at least with long-standing precedent. Since Dred Scott failed all these tests, Lincoln believed that it should be reversed, and he intended to do what he could to get it reversed. But he would not try to fill the Court with new, "catechized" justices (a process to which he thought Douglas had been party regarding the Illinois state bench). Instead he would seek to persuade the Court of its error, hoping that it would reverse itself. Lest this seem naive, we must remember that he intended to conduct his argument before the American people. Lincoln knew that in the final analysis durable judicial rulings on major issues must be rooted in the soil of American opinion. "Public sentiment," he said, "is every thing" in this country.