Abortion and Political Strategy

Unfortunately, abortion has become a political football, since the 1973 Roe v. Wade Supreme Court decision that effectively overturned all state regulation and/or abolition of abortion on demand. In essence, the federal courts have seized lawmaking ability from the state legislatures. So, abortion opponents have been pursuing a strategy that involves overturning the decision, either by a Constitutional amendment (which requires too many majorities to make this a likelihood), or the more common strategy of seeking to secure a pro-life president in the hopes that pro-abortion justices will retire or die in office on his watch, so that the pro-life president can appoint pro-life justices in hope of eventually overturning the decision over the course of time.

This strategy has been a failure. Even after decades of pro-life presidents, Roe v. Wade still stands. The states are hamstrung. Babies are slaughtered in the U.S. by the millions - all made legal by less than a dozen individuals.

And even if this strategy results in a majority of justices willing to overturn the decision, that fragile balance can (and likely will) be overturned by the pro-abortion side. Thus the question of infanticide is likely to be forever stuck between the pendulum swings of elected presidents - with the federal legislature and the state legislatures (i.e. the people) completely removed from the process.

What we currently have is a judicial dictatorship that can only be curtailed incrementally when one of the dictators dies - when whichever side happens to control the presidency at that moment gets to set the policy for what may be decades. We pro-lifers are utterly dependent on politicians who claim to be pro-life (whether they truly are or arent, whether they are staunch or lukewarm), and we're dependent upon the judges they appoint to be honest and never to change their minds over a lifetime of jurisprudence. This one issue is all-consuming, and may cause us to elect a president (and/or a party) based on this one issue alone, which gives that party a monopolistic stranglehold on the pro-life constituency, and thus the ability to take us for granted because, after all, are we going to vote for another party that is not committed to life?

The founders never intended this kind of dictatorship. And the political parties of both sides are exploiting the abortion issue to win votes. Congress has the Constitutional remedy right now to end this dance of death, to overturn Roe v. Wade apart from the presidency, and restore this issue to the control of the states - where it belongs constitutionally.

Here is an explanation of how this works, written by a pro-life congressman:

"One of the most contentious issues in our public life over the past three and a half decades has been abortion. As a physician, and in particular as an obstetrician who has delivered over 4,000 babies, I have always had a special interest in the subject of abortion. When I studied medicine at the Duke Medical School from 1957 to 1961, the subject was never raised. By the time of my medical residency at the University of Pittsburgh in the mid-1960s, though, wholesale defiance of the laws against abortion was taking place in various parts of the country, including my own.

Residents were encouraged to visit various operating rooms in order to observe the procedures that were being done. One day I walked an operating room without knowing what I was walking into, and the doctors were in the middle of performing a C-section. It was actually an abortion by hysterectomy. The woman was probably six months along in her pregnancy, and the child she was carrying weighed over two pounds. At that time doctors were not particularly sophisticated, for lack of a better term, when it came to killing the baby prior to delivery, so they went ahead with delivery and put the baby in a bucket in the corner of the room. The baby tried to breathe, and tried to cry, and everyone in the room pretended the baby wasn't there. I was deeply shaken by this experience, and it hit me at that moment just how important the life issue was.

I have heard the arguments in favor of abortion many times, and they have always disturbed me deeply. A popular academic argument for abortion demands that we think of the child in the womb as a 'parasite' that the woman has the right to expel from her body. But the same argument justifies outright infanticide, since it applies just as well to an infant outside the womb: newborns require even more attention and care, and in that sense are even more 'parasitic.'

If we can be so callous as to refer to a growing child in a mother's womb as a parasite, I fear for our country's future all the more. Whether it is war or abortion, we conceal the reality of violent acts through linguistic contrivances meant to devalue human lives we find inconvenient. Dead civilians become 'collateral damage,' are ignored altogether, or are rationalized away on the Leninist grounds that that to make an omelet you have to break some eggs. (The apostle Paul, on the other hand, condemned the idea that we should do evil that good may come). People ask an expectant mother how her baby is doing. They do not ask how her fetus is doing, or her blob of tissue, or her parasite. But that is what her baby becomes as soon as the child is declared to be unwanted. In both cases, we try to make human life into something less than human, simply according to our will.

When Roe v. Wade was decided in 1973, striking down abortion laws all over the country, even some supporters of abortion were embarrassed by the decision as a matter of constitutional law. John Hart Ely, for instance, wrote in the Yale Law Review, 'What is frightening about Roe v. Wide is that this super-protected right is not inferable from the language in the Constitution, the framers' thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation's governmental structure.' The decision, he said, 'is not constitutional law and gives almost no sense of an obligation to try to be.'

The federal government should not play any role in the abortion issue, according to the Constitution. Apart from waiting forever for Supreme Court justices who will rule in accordance with the Constitution, however, Americans who care about our fundamental law and/or are concerned about abortion do have some legislative recourse. Article III, Section 2, of the Constitution gives Congress the power to strip the federal courts , including the Supreme Court, of jurisdiction over broad categories of cases. In the wake of the 1857 Dred Scott decision, abolitionists spoke of depriving the courts of jurisdiction in cases dealing with slavery. The courts were stripped of authority over Reconstruction policy in the late 1860s.

If the federal courts refuse to abide by the Constitution, the Congress should employ this constitutional remedy. By a simple majority, Congress could strip the federal courts of jurisdiction over abortion, thereby overturning the obviously unconstitutional Roe. At that point, the issue would revert to the states, where it constitutionally belongs, since no appeal to federal courts on the matter could be heard. (I have proposed exactly this in H.R. 300.)

Let us remember, though that the law can only do so much. The law isn't what allowed abortion: abortions were already being done in the 1960s against the law. The courts came along and conformed to the social and moral changes that were taking place in society. Law reflects the morality of the people. Ultimately, law or no law, it is going to be up to us as parents, as clergy, and as citizens - in the way we raise our children, how we interact and talk with our friends and neighbors, and the good example we give - to bring about changes in our culture toward greater respect for life.

To those who argue that we cannot allow the states to make decisions on abortion since some will make the wrong ones, I reply that that is an excellent argument for world government - for how can we allow individual countries to decide on abortion or other moral issues, if some may make the wrong decisions? Yet the dangers of a world government surely speak for themselves.

Let us therefore adopt the constitutional position, one that is achievable and can yield good results but that shuns the utopian idea that all evil can be eradicated. The Founding Fathers' approach will not solve all problems, and it will not be perfect. But anyone expecting perfection in this world is going to be consistently disappointed.

The same holds true for issues like prayer in schools. Such issues were never meant to be decided by federal judges."

Pages 58-61 of The Revolution: a Manifesto by ten term pro-life congressman Ron Paul, M.D. (TX-R), Grand Central Publishing, New York, NY, 2008.