Readers who believe that the Supreme Court has settled the political conflict over abortion should consider Professor John Hart Ely’s essay, “The Wages of Crying Wolf,” in the Yale Law Journal. He condemned Roe v. Wade as “a very bad decision. Not because it will perceptibly weaken the Court – it won’t; and not because it conflicts with either my idea of progress … it doesn’t. It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.”

John Hart Ely, now deceased, was a liberal law professor who may have been the most frequently quoted legal scholar in his day. He favored abortion rights, but he subordinated his personal preferences to his commitment to Constitutional scholarship. I don’t mention him because he has wrote the last word on the decision. I mention his analysis to suggest that politicians who praise Roe vs. Wade as the final word, without ever reading the text are just hiding behind it.

Gallup’s annual “Values and Beliefs” poll, conducted last month concluded that 50% of Americans believed that abortion is morally wrong. That does not resolve the issue. The bills passed by Georgia, Kentucky, Louisiana, Mississippi, Alabama and Ohio to limit abortion are not conclusive either. Legislatures in the New England states can be relied on to protect abortion rights. This does not resolve the issue either. Vermont  just passed H57, which eliminates all abortion restrictions, allowing abortion up until birth. Gov. Mills has signed a bill making Maine the second state after California with a law allowing non-doctors to perform abortions. The Senate vote (19-16) seems to indicate that a significant fraction of Maine’s voters are not in favor of maximizing the number of abortions by allowing nurse practitioners, physician assistants and certified nurse-midwives to perform abortions.

When a substantial part of America’s voters see abortion as immoral we might wonder why compromises are not being considered. If the opponents believe that abortion is the destruction of human life, murder in fact, it seems a little harsh to force them to share the cost by paying taxes to support our state’s medical programs.

Gov. Mills and her “pro-choice” supporters are not interested in giving them that choice. Presumably they  know they are right and that the opposition is just a mob of yahoos lacking in sophistication and sympathy. So why should those people be taken seriously? Anyway they have a ready-made response, i.e.,  a lot of people are forced to pay taxes for things they oppose so why should the pro-lifers be allowed a choice?

Here are some discomforting rules of compromise. First, a compromise is a solution that satisfies neither side in a conflict, but which both sides can live with. Second, principles on both sides will have to be weakened or abandoned. Third, common sense may often be mocked to arrive at an agreement.

A few years ago a president of Emory University in Georgia wrote an article in which he described the three-fifths rule for congressional apportionment as a compromise. People in the North, who had few slaves and were moving rapidly toward abolition, saw no reason why slaves should be counted in the census as if they were citizens. Southerners saw no reason to abandon the principle of counting every inhabitant, including women and children, who could not vote. More, the Yankees did not want the to give the South more political power in the House of Representatives while the Southerners wanted more power.

Since they wanted to create a United States and did not want to have a civil war, the two sides agreed to count slaves as three-fifths of human being for purposes of the census. Clearly, this violated both principle and logic. They knew that but saw it was the only way to solve the problem.

Left-lurching students and faculty at Emory forced the president to retract his argument and apologize. Compromise, you see, is a good and comforting word. This agreement incorporated racist beliefs; so it could not be a compromise.

John Frary of Farmington is a former candidate for U.S. Congress, a retired history professor, an emeritus board member of Maine Taxpayers United, a Maine Citizens Coalition board member, and publisher of FraryHomeCompanion.com. He can be reached at jfrary8070@aol.com.

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