No, McCain Won’t End Abortion
Over at The Atlantic, Ross Douthat objects to Andrew Bacevich’s conservative case for Obama. Douthat believes Bacevich has not given enough consideration to the possibility that McCain will appoint judges who will overturn Roe v. Wade. Douthat is here trotting out the familiar line of argument that kept many dissident conservatives on Bush’s side in 2004. In fact, it’s the line of argument that has kept dissident conservatives on the Republicans’ side in general since 1988. Bush I, Dole, Bush II, and McCain may all be lousy for the Right, but, hey, you want your judges, don’t you?
Bacevich no longer drinks that particular flavor of Kool-Aid: “only a naïf would believe that today’s Republican Party has any real interest in overturning Roe v. Wade,” he writes, “or that doing so now would contribute in any meaningful way to the restoration of ‘family values.’” Douthat challenges him on both points.
Bacevich has the better of the argument, at least as regards abortion. The GOP has had opportunities to overturn Roe before—at any point when Republicans controlled the House, Senate, and White House, Congress could have restricted the Supreme Court’s jurisdiction over abortion using the powers invested in the legislative branch by Article III of the Constitution, overturning Roe at a stroke. Perhaps they were right not to do so: the powers of Article III, Section 2 have rarely been used in such a manner, and the precedent could easily have boomeranged against conservatives once the Democrats took Congress. Nevertheless, if the GOP were as adamantly pro-life as pro-lifers are encouraged to believe it is, the Republican Congress could have voided Roe any time between 2003 and 2007.
President Bush’s burning desire to appoint Harriet Miers to the Supreme Court, even though her views on Roe are a mystery (perhaps not least to herself), also signifies the weakness of the Republican Party’s commitment to ending Roe. In a rare act of resistance, the conservative movement rose up against Bush in late 2005 and forced him to withdraw her nomination and place Samuel Alito on the bench instead. Could we expect the conservative movement to compel McCain to appoint a similarly antiabortion justice—assuming that Alito is as antiabortion as most people think? There are two problems with that scenario: First, McCain is made of sterner stuff than Bush and has shown a much greater willingness to defy the movement. Bush has wrecked conservatism by leading it astray on immigration, foreign policy, and the growth of government, but he has never been as quick to anger movement regulars as McCain has been. Second, and more importantly, McCain would take office with a Democratic Senate, which will make appointing strict-constructionist justices difficult if not impossible.
Douthat reminds us that Roe might have been overturned in the 1992 Planned Parenthood v. Casey decision, had it not been for Justice Kennedy’s change of heart on the issue. But that change of heart speaks volumes: Kennedy was, after all, a Reagan appointee, nominated after Reagan’s first two choices, Robert Bork and Douglas Ginsburg, were rejected by a Democratic Senate. The rosiest scenario under McCain—in which he appoints an apparently conservative justice who can be confirmed by a Democratic Senate—would most probably produce a repeat of the Kennedy debacle. With a Democratic Senate, the Republicans are a long way from overturning Roe, even assuming they really want to do so.
Douthat predicts that “to vote for Barack Obama in 2008 is to give up on overturning Roe for at least a decade, probably for two, and possibly for all time.” This is histrionic. As the first comment posted in response to Douthat’s blog pointed out, the four presumably anti-Roe justices on the court are all young enough that one can expect them to be around in a decade’s time. Scalia is the oldest of the four at 72; liberal Justice John Paul Stevens is still on the court at 87. If Republicans can purge themselves of the taint of the Iraq War and clean up the party by 2012 or 2016, an opportunity to create an anti-Roe majority may arise again. Let McCain fall, and let a revived GOP, restored to some semblance of the principles of Robert A. Taft, retake the Senate and White House in the future. The alternative, electing McCain, perpetuates all the errors of the Bush administration—the errors that cost the GOP the Senate in the first place. McCain can be counted upon to be worse than Bush in every arena, from taxes to foreign policy to immigration. And while Bush at least tried to court conservatives, employing the now-shamed Tim Goeglein to cultivate cordial relations even with paleos, McCain’s personal history suggests he may be openly contemptuous of the Right.
The idea that voting for Obama would mean “giv[ing] up on overturning Roe for … all time,” is absurd, though a better case against dissident conservatives voting for Obama can be constructed by suggesting what Obama might do to promote abortion, including ending the “Mexico City” policy; expanding the Freedom of Access to Clinic Entrances law, which is aimed at curbing pro-life protesters’ first amendment rights; increasing funding for embryonic stem-cell research; and subsidizing abortions with taxpayer dollars. All of this and worse may be forthcoming from a unitary Democratic government. The Republicans are unreliable on abortion. The Democrats, by contrast, are very reliable indeed, and if anyone mistakes Bill Clinton for having been an abortion moderate, that misapprehension is only made possible because he had to deal with a Republican Congress for most of his eight years in office. It was Clinton and the Democratic Congress that gave us FACE in the first place in 1994, and Clinton also suspended the Mexico City policy.
Douthat halfway concede ones point to Bacevich, acknowledging that “overturning Roe wouldn’t magically restore us to some Ozzie-and-Harriet wonderland,” though he says, “returning control over abortion law to the hands of the voting public remains a necessary goal for any pro-life, socially-conservative politics that takes itself seriously as a change agent in American life.” Bacevich is not denying any of that, of course, and Douthat simply avoids the tough question implied in Bacevich’s article: what exactly can we expect from overturning Roe, and is whatever hoped-for good is to be achieved enough to justify voting for a candidate—McCain—who will perpetuate one unjust and disastrous war and probably start a few more? Here at Taki’s Magazine, John Zmirak has outlined some of the limits of what will and won’t be achieved by overturning Roe. Some states might ban abortion, others certainly would not, with the result that
“We might well be able to reduce the rates of abortion among the very poorest American women, who couldn’t afford a regional airfare—which would be a very good thing. But little more than that. Come the advent of the next Democratic president, we could expect the use of federal funds and other forms of pressure to squeeze the “unenlightened” states to get in line with those that reflect elite opinion. And the whole thing would start to erode. Of course we would fight, and we might well hold out. We might well be able to keep abortion a regional “privilege”—even as the influx of left-leaning immigrants continued to undermine our majorities in states across the country.”
My own projection differs from John’s in a few specifics. For one thing, I think groups like Planned Parenthood will make sure that even the poorest women can get abortions on demand. The spectacle of scores of minority women being ferried across state lines in Planned Parenthood buses on the way to abort their children would have some educational value, no doubt—progressives would get to see exactly whose parenthoods are being planned, and whose childhoods are being annihilated. But Planned Parenthood has always been determined to see its task through, and I suspect few progressives would find courage to object. States or a hypothetical Republican Congress could try to ban interstate travel for purposes of abortion, but that would lead the whole issue back into the Supreme Court. And one can be sure that liberals will colonize the courts with renewed vigor in an attempt to reinstate a universal right to abortion. The abortion wars will continue.
Jeffrey Rosen’s 2006 Atlantic essay “The Day After Roe” sketches the probable outcomes of reversing Roe state by state—which states are likely to ban abortion, which won’t, and how the fight will affect Congress and the White House. Rosen’s article has dated badly—he wrote it to raise the prospect that overturning Roe could cost Republicans control of Congress and the White House. It didn’t take overturning Roe to do that, of course, the Iraq War accomplished that all by itself. Still, Rosen raises some important issues, such as the predictable effect that a handful of botched illegal abortions will have on public opinion. “In the late 1960s, as Bill Stuntz of Harvard Law School notes,” Rosen writes, “national opinion shifted after sensationalistic articles appeared in Newsweek and The Saturday Evening Post exaggerating, by at least a factor of ten, the number of deaths from botched illegal abortions. A year or two after Roe, a similarly galvanizing television image might mobilize women in swing states to take to the streets on behalf of the right to choose.” Professor Stuntz dramatizes the issue for Rosen: “If a young woman who is raped gets pregnant and goes to a downscale abortion provider and dies from the infection, that becomes a huge story.”
Rosen provides figures on how many states would be likely to ban abortion in the first place. “Even without Roe v. Wade, “ he writes, “according to the Center for Reproductive Rights, a woman’s right to choose would be secure in about twenty-three states,” due to laws or state court decisions that are already on the books. “And in seven more (Hawaii, Iowa, New Hampshire, New York, Oregon, Vermont, and Wyoming), the political climate is sympathetic to choice, and citizens are likely to demand strong new laws protecting abortion.” Even in those states that might ban abortion, meanwhile, the strongest prohibitions would fail, leaving abortion legal either in early stages of pregnancy or under specific circumstances. The 2006 repeal by referendum of South Dakota’s comprehensive abortion ban bears out Rosen’s point.
None of this means that the pro-life cause is hopeless. Very far from it: as University of Alabama political science professor Michael New has shown, restrictions on abortion that fall short of comprehensive bans still cut the abortion rate. Overturning Roe will give teeth to these restrictions and allow for more, and at least a few states probably will ban late term abortions outright. Not only will there be fewer abortions—how many fewer is anyone’s guess—but a Supreme Court decision that was wrong from the beginning on constitutional grounds will have been voided, and that too is good in itself. But the blight of abortion will not disappear from the United States, and in all too many places the practice will continue in precisely the same fashion and at the same rate as it already does. This is a painful political reality; to reduce the abortion rate in the U.S. dramatically will take a long time and will require much more than the reversal of Roe. Even if the Republicans at some point have both the will and the opportunity to follow through on their commitment to end Roe, victory in the abortion wars will be a long way off. In the meantime, we should at least stay out of wars in the Middle East and elsewhere—though the question remains whether Obama really would be less belligerent than his rival, and whether President Obama wouldn’t boost the abortion rate, even if President McCain would be unlikely to reduce it.
Comments
Mr. McCarthy,
Excellent article!
There is a short answer to why the Republican Party and the National Right to Life Organization love abortion: “Jobs.” Abortion provides ballots, administrative and elective offices, and funds for those who pretend to oppose it.
As you aware in the recent Republican primary, there was one candidate who was neither a lawyer nor an actor. He was an Obstetrician/Gynecologist who had delivered over four thousand babies, had actually seen an abortion, and had written a book, A Challenge to Liberty, in support of life as a bed rock of constitutional law. This candidate astonishingly actually attended and addressed in person the annual pro-life demonstration in Washington!
This candidate was not included among those evaluated by the National Right to Life Organization, which endorsed the lawyer and actor Fred Thomson. From an economic point of view, this was an entirely rational decision for the administrators and fundraisers of the Washington pro-life bureaucracy: “Don’t kill the job.”
The industrial and economic aspects of the Culture of Death thoroughly extend into forces that pretend to oppose it both with respect to the wars (where did the left go?) and the abortion issue (where did the Catholic bishops and clergy go?)
Hey, it’s a job.
But it’s time for us amateurs and little people to skeddadle form these racketeers.
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So the choice for pro-lifers is this: McCain, who opposes abortion, probably will nominate justices who might one day overturn Roe, will work to reduce the number of abortions during his presidency though he won’t be able to end the practice himself - and it apparently would be fruitless and counterproductive if he did - but he might keep us in Iraq a while longer; or, Obama, who openly supports abortion, will most definitely appoint pro-life judges, will increase the number of abortions and their federal support, will improve access to abortion and restrict oppostion, voted for partial birth abortions, including the killing of aborted babies born alive - but might get us out of Iraq sooner.
That’s a no-brainer. Yes, we’ll have 2 million plus babies killed a year rather than the 1.6 today, but we might get out of Iraq sooner. Even the Pope would vote Democratic.
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That tired strategy of the “conservative” <snicker> politicans of combining social populism with political plutocracy is getting really tired and lame. Fundamentalists, who don’t necessarily agree with the “libertarian” economic policies (ie, giving those that have the most, even more) are really getting a clue that they’ve been fooled long enough.
Democrats, esepcially OBAMA, is getting hip to the Republican strategy of talking the talk, but not walking the walk--in fact running the other way---and are responding the increasing economic insecurity of the old Nixon “Silent Majority”, that elected Ronald Reagan, and stuck with Bush2 until recently.
We’ve got the “conservative” Republicans to thank for the repeal of the Glass-Steagall Act, which seperated investment from commercial banking, and resulted in the rise of Citibank, and the “economic freedom” that resulted in the derivative crisis at the basis of real estate bubble, and the recent FED bailouts.
Let’s not forget the Iraqi War either.
It’s time to admit that “libertarianism” is at best utopian fantasy, and at worst, a the transparent policy of of the CEO classes that are strangling the American middle class. Get rid of the “Laissez Faire” nonsense, and let’s move ahead with some hard thinking on what really needs to be done to reinvigorate the “Sonservative” right.
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A year or two after Roe, a similarly galvanizing television image might mobilize women in swing states to take to the streets on behalf of the right to choose
The politicized anti-abortion crowd have absolutely NO understanding of the mind-set of feminists, who would BURN DOWN courthouses, rather than accept a diminishment of their “right to choose.”
This issue is becoming as dangerous to the security of the American polity as slavery was in the 19th century, and the anti-abortionists are EQUALLY as fanatical and violent as the crazed feminists and the abolitionists. True Christians would NEVER advocate the kind of violence that these kinds of issue-mongering lead to.
The only way to end abortion is to change the culture of feminism one woman at a time. To resort to political coercion or to war (as in the case of slavery) is simply to put off to a later date the violent resistance to “victory"--as in the case of the “Jim Crow” system of the post-Civil War South, which was, in many respects, WORSE than the ante-bellum slave system.
Abortion CAN be stopped, but only gradually, by persuading women that it is DESTRUCTIVE of their feminine natures.
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Digby Dolen sed: “Abortion CAN be stopped, but only gradually, by persuading women that it is DESTRUCTIVE of their feminine natures.”
Excellent wisdom and insight. Left Feminists like to argue that the anti-abortion coalition is complsed of
“Old White Men” imposing their “plutocratic values” on powerless, hapless females. In fact the anti-abortion movement is composed mostly of women who feel betrayed at being counseled that abortion was an easy and simple “solution” to their unplanned or unwanted pregnancy.
The real importance of abortion in the political discourse to both parties is how to leverage it to win political power...Republicans talk like social populists, but govern like plutocrats, while the Democracrats have been lost since 1968 in a mis-mash of “identity politics” that has largely rendered them irrelevant to the broad majoirty of middle class Americans.
Abortion, like race, is a “wedge issue” and has no importance but to distract the public from the real economic agenda of the power elite, which I define as Big Business, Big Media and Big Academia.
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Who said the issue of judges was all about abortion? Judges do more than just sit around talking about a single issue.
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Rollo:
It is certainly true that judges do more than sit around working on, or worrying about, abortion cases. In the case of the judge whom I know the best, in her more than 20 years on the Fifth Circuit, she has actually had to rule on only one such case:
http://caselaw.lp.findlaw.com/data2/circs/5th/0310711p.pdf
and as can be seen, the constraints of Supreme Court precedent are substantially dispositive for lower court judges. While this certainly argues for better Supremes, the lower courts do other very important work and should not be overlooked.
A problem with judicial appointments generally, though, is that once they get appointed they don’t always (one might even say, “often") turn out the way the Executive Branch folks thought they would. With respect to Roe, probably only a person already well known as a hard core opponent of Roe could be really counted on to vote to overrule it, and what do you want to bet on the likelihood of confirmation of such a person?
So all of that said, while I like others voted for Bush in 2004 on the basis of judicial appointments, I do not think I will make that mistake again. It’s not to say that I won’t eventually reconcile to voting for “Ludendorff”, but then again I might vote for Hindenburg, or Dollfuss.
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Woody Jones is exactly correct on the reliability of judges. It is useful to remember that before Anthony Kennedy voted to uphold Roe v Wade, he was widely viewed, across the ideological spectrum, as a solid vote against Roe. For that reason, I think it is a mistake to assume that Chief Justice Roberts and Justice Alito will vote to overturn Roe, although of course I hope they do.
Bill Clinton openly declared that he had a pro-Roe litmus test for Supreme Court appointments. Unless we have a president willing to impose an anti-Roe litmus test, we really cannot be certain that the justices he appoints will end up ruling the way we want them to.
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If ending 1st trimester abortion isn’t the goal, there really isn’t a point. When we get to 2nd and third trimester abortions, we are talking in at least half the cases of babies with fetal abnormalities. If one is too quesy to end 1st trimester abortion, they’ll be too quesy to end it in that circumstance. Even if you could get abortion strictly banned in the 2nd and 3rd trimesters, you would be looking at under a 20% reduction in abortion. Certainly it is better than nothing, but it ain’t much. And if we aren’t willing to criminalize it, one has difficulty seeing how we are going to reduce abortion. Sure, many pro-lifers claim they are willing to charge doctors, but how are they going to handle the obstruction cases brought against the women who sought the abortionist’s services? They aren’t going to handle it well, because they have great difficulty even handling the fact that women choose to have abortions because they want them; most of the movement can’t even bring themselves to say that women who procure abortions are acting with malice. Opposition to abortion in this country is a chymera, and it is a damn shame, because the consequences are so grave.
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If a woman has an abortion, who am I to judge her? Wont GOD be the final judge of her action?
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“If a woman has an abortion, who am I to judge her?”
If some guy murders a jogger in Central Park, who am I to judge him?
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“Scores of minority women being ferried across state lines in Planned Parenthood buses”
Does this actually happen?
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Who would think the Republicans are really against abortion? They made a public spectacle out of
banning “partial birth abortion” which was rarely used and then sat by twiddling their thumbs when
the FDA approved the new “Emergency contraception” pill. That was in 1999 with a Republican congress.
Is there any doubt we’ve had more abortions the last 10 years than ever before? By making
abortions so easy we don’t even know how many there have been! Supposedly abortions are down...but
that of course might be because there are so many “morning after” abortions. What a joke!
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We can also thank conservatives for media consolidation which has suppressed and marginalized dissenting voices from the mainstream media.
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The real question is whether the principled pro-life movement will follow the logical consequences of their moral reasoning. If the fetus from conception is a human person, then it deserves Constitutional protection under the Equal Protection Clause, period. Overturning Roe simply says abortion is no longer a federally-protected PRIVATE choice and transforms it into a STATES’ choice, which turns the status of the unborn into a police matter subject to democratic preferences of the individual states. So anti-Roe pro-lifers are really advocating for a variation on the pro-choice theme, which totally renders their moral logic incoherent. You can’t be exclusively anti-Roe and affirm the ontological status of the unborn at the same time. How is the anti-Roe argument any different from Douglas’ debating points against Lincoln? I know I’m talking to a lot of anti-Lincolns here, but it’s never been clear to me whether paleocons truly despise the 14th Amdt. My Catholic pro-life reasoning leads me to believe that it’s either a Constitutional Amendment, a 14th Amendment for the unborn, or we just give up the political chase.
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still so disappointing
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If some guy murders a jogger in Central Park, who am I to judge him?
Posted by Peter Ramus
Your a judge?
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I introduce to you Peter Ramus, Judge of no court.
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Here lies Peter Ramass, Judge of his own mind, Judge of the afrerlife, Judge of all things past and present.
GOD is Peter!!
not.
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You are probably correct that President McCain would do little to promote the pro-life movement. (Of course, through executive orders and administration policy, he would still be better than the disgustingly pro-abortion Obama and Hillary.)
However, we all know that Bacevich’s piece has nothing to do with domestic policy. It is all about supporting a Third Worldist candidate because he ensure our defeat in Iraq.
As a matter of strategy, supporting Obama is the stupidest thing I have heard in quite a while. Putting aside the fact taht a Lt. Col should have a better grasp of strategy on a philosohical basis, the reality is taht Bacevich ignored 2006.
Many conservatives thought that supporting the Democrats would teach the GOP a lesson.
The GOP learned one and has moved left, hence McCain.
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Jet, the legal question of abortion doesn’t concern the individual state of the woman’s soul
before God. It has to do with the objective nature of the act. It is murder, just as much
as if someone were to kill you or me for writing disagreeable things on this website. I would want
the killer locked up, let God judge his or her soul. Criminalizing abortion is first and
foremost about addressing the *crime* of abortion, not about the *sin* of abortion, which doesn’t
fall within the state’s purview.
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Come the advent of the next Democratic president, we could expect the use of federal funds and other forms of pressure to squeeze the “unenlightened” states to get in line with those that reflect elite opinion
Much like the feds withheld federal highway funds from states that did not raise the drinking age to 21. I think Louisiana was the last holdout.
Still, can’t vote for Obillary as the pro-choice zealotry makes them a nonstarter. As for McCain, still see no reason to vote for him either. Across the river and through the woods, to a third party ticket we go.
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