SINCE WHEN can't you oppose a nominee for high government office unless he broke the law? For nearly two weeks Dr. Henry Foster Jr.'s supporters have been insisting that because his long record of performing and facilitating abortions was not illegal, it should have no bearing on his nomination to be surgeon general. Listen:
* "The idea that performing a legal medical procedure could even possibly disqualify Dr. Foster is an outrage." -- Rep. Nita Lowey of New York, a Democrat and chairman of the Congressional Women's Caucus.
* "The question is whether having done something perfectly legal should be an issue. . . ." -- Dr. Judith Reichman, board member, Planned Parenthood of Los Angeles.
* "Here's a man who has delivered thousands of babies, counseled thousands of teen-agers, and he could be blocked for doing something that's legal in all 50 states. It's Alice in Wonderland." -- Democratic Sen. Patrick Leahy of Vermont.
* "Whatever one may think about abortion, the fact is it's legal. //TC qualified professional ought not be rejected for public service simply because he provided a legal medical procedure." Chicago Sun-Times editorial.
* "No one ought to be disqualified from being surgeon general . . . for performing abortions, which is a medical procedure legal under the U.S. Constitution." -- Republican Sen. Arlen Specter of Pennsylvania.
If this is what passes for persuasion among Mr. Foster's supporters, it's no wonder his nomination is going down in flames. So he didn't break the law when he aborted several dozen (as he says now) human pregnancies. No one said he did. When Lani Guinier and Robert Bork wrote their provocative law review articles, they didn't break the law, either. Does that mean Mr. Bork's opponents had no right to make an issue of his views when he was nominated to the Supreme Court? Or that Ms. Guinier's racial attitudes had no bearing on her fitness to head the civil rights division at the Justice Department?
Try telling John Tower or Theodore Sorensen that the only proper yardstick by which to measure presidential nominees is whether they ever ran afoul of the law.
Drinking is a legal activity, one that a hundred million Americans engage in with varying degrees of pleasure. Yet Mr. Tower's taste for alcohol was enough to sink his 1989 nomination to be defense secretary. Mr. Sorensen lawfully avoided military service in 1945 by claiming conscientious-objector status. Three decades later, a lot of senators thought that was reason enough to deny him confirmation as director of the Central Intelligence Agency.
At the heart of the argument being made by Mr. Foster's defenders is the notion that what matters about a nominee's behavior is not whether it was right or wrong, good or bad, smart or stupid -- merely whether it was legal. It is impossible to imagine their making such a flaccid argument in any other context.
Imaginary Scenario 1: President Clinton nominates Hugh Hefner to direct the U.S. Information Agency, and the antipornography legions mobilize in opposition. The Congressional Women's Caucus rides to Mr. Hefner's defense with the observation that publishing Playboy is a legal activity and thus shouldn't disqualify him from serving.
Imaginary Scenario 2: An anti-union litigator with wide experience in labor-relations law is picked for U.S. labor secretary (an excellent idea, come to think of it). Big Labor goes ballistic. Messrs. Leahy and Specter tell Big Labor to shut up, since there is nothing unlawful about fighting unions in court.
Sure they do.
The Foster forces keep harping on abortion's legality because they want to avoid a debate over abortion's morality. And with good reason: That is a debate they cannot win.
Twenty-two years after Roe v. Wade, vastnumbers of Americans -- not just ardent pro-lifers -- still disapprove of abortion. In a nationwide CBS News poll last month, 58 percent of respondents said abortion should either be banned or more strictly limited. Fifty-five percent would prohibit the RU-486 abortion pill. Asked bluntly whether "abortion is the same thing as murdering a child," fully 46 percent answered yes.
When Hillary Rodham Clinton calls abortion "wrong" (as she did in a Newsweek interview last November), when even Mr. Foster himself blurts out (on "Nightline") that abortion is repugnant -- "I abhor abortions. I abhor war. To me abortion is failure." -- it is clear that America has not made its peace with abortion on demand.
Abortion may be legal, but to much of the mainstream, it remains a sordid and immoral practice. Henry Foster's nomination would not be in trouble if he merely held pro-choice views. But the cold and ugly fact is that Mr. Foster himself, with his own hands, has destroyed unborn infants. You don't have to be a fanatic or a member of Operation Rescue to believe that the most prestigious post in American medicine would be better filled by someone less tainted.
Jeff Jacoby is a columnist for the Boston Globe.