Abortion is a highly charged emotional issue. Many people oppose abortion, under any circumstances. Others think it is just fine in all circumstances. Still others think it is OK in some, but not all circumstances. These, I submit, are "givens." What I don't understand is why abortion is a major issue in the Presidential race, since there is very little the President can do to grant the wish of any group vis a vis abortion.
Much attention has been paid to the answers of Senators McCain and Obama at the Saddleback event, to the question
at what point does a baby get human rights, in your view?
OBAMA: Well, you know, I think that whether you’re looking at it from a theological perspective or a scientific perspective, answering that question with specificity, you know, is above my pay grade. . . . But let me just speak more generally about the issue of abortion, because this is something obviously the country wrestles with. One thing that I’m absolutely convinced of is that there is a moral and ethical element to this issue. And so I think anybody who tries to deny the moral difficulties and gravity of the abortion issue, I think, is not paying attention. So that would be point number one.
But point number two, I am pro-choice. I believe in Roe v. Wade, and I come to that conclusion not because I’m pro-abortion, but because, ultimately, I don’t think women make these decisions casually. I think they — they wrestle with these things in profound ways, in consultation with their pastors or their spouses or their doctors or their family members. And so, for me, the goal right now should be — and this is where I think we can find common ground. And by the way, I’ve now inserted this into the Democratic party platform, is how do we reduce the number of abortions? The fact is that although we have had a president who is opposed to abortion over the last eight years, abortions have not gone down and that is something we have to address.
MCCAIN: At the moment of conception. (APPLAUSE).
To me, the question was not a very good one, since "human rights" has many different meanings in many different contexts, possibly including the right to citizenship.* Nevertheless, both candidates seemed to respond to it as though it had been "At what point does abortion cease to be a viable option, if it ever is a viable option?" Senator Obama expressed his agreement with Roe v. Wade . Senator McCain seems — almost but not quite — to have said that abortion should be unlawful, period.
As I read Roe v. Wade, a State (as distinguished from the Federal Government) has two legitimate interests in abortion.
1. During early pregnancy, a State can regulate the medical conditions under which abortions are performed, solely in the interest of the safety of the pregnant woman. It can, therefore, prohibit "coat hanger" abortions, require that abortions be performed only by licensed physicians, only in certified medical facilities, and the like. This decision was based on the then existing state of medical practice, it being felt that prior to the end of the first trimester, abortion presents insufficient State interest to justify intervention for reasons transcending the health of the pregnant woman. Hence, prior to the end of the first trimester, any pregnant woman who so desires can have an abortion performed for whatever reason she wishes, subject only to the State's interest that the procedure be performed safely for the woman.
2. "For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." Viability is rather a fuzzy concept. According to the Court, "viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks." Viability was intended to mean "potentially able to live outside the mother's womb, albeit with artificial aid." The Court expressly did not delve into the question of when life begins. "The word 'person,' as used in the Fourteenth Amendment, does not include the unborn. . . . We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer."
It has been a long time (more than thirty years) since Roe v. Wade was decided; although I have not studied the subject, it seems likely that, with modern technology, a fetus might legitimately be considered viable much earlier than it was in 1973. Were the Supreme Court to revisit Roe v. Wade, it might and possibly should take into account whatever impact current technology may have on these questions and decide that abortion may be prohibited, except when necessary for the "preservation of the life or health of the mother" even during the first trimester.
There is nothing I can find in Roe v. Wade which would permit a State to prohibit even very late term abortions, where medically necessary for the "preservation of the life or health of the mother."
The reasons articulated in Roe v. Wade seem to me to apply not only to the States but to the Federal Government as well, founded as they are on the Constitution as applied to State actions via the Fourteenth Amendment. Hence, any Federal effort to ban abortion prior to the end of the first trimester and prior to "viability," regardless of the medical consequences to the pregnant woman, would probably fail muster. So would any Federal effort to ban even very late term abortions, medically necessary for the "preservation of the life or health of the mother."
It seems to me that the Federal Government (unlike a State Government) has no legitimate interest in abortions, or even infanticide. I agree that very late term abortions and infanticide are bad things, and that the States should ban them, criminally, unless (once again) necessary for the "preservation of the life or health of the mother." I can think of no circumstances in which infanticide — killing a child whose abortion failed and who survived the experience — would be necessary for those reasons.
Most criminal matters are quite properly left up to the States. If I murder someone in California, it is an offense against the laws of California and it is under the laws of California that I should be tried. Federal criminal law applies to murder only in very limited circumstances, where there is a substantial Federal interest transcending the murder itself. True, transcendent Federal interests are being found these days where they had never previously been thought to exist; I think that is a pernicious trend.
My position is that the question of whether to have an abortion should be left up to the pregnant woman during the first trimester (subject to the question of "viability" being revisited), and that it should not be prohibited later in the pregnancy, even after "viability," if necessary for the "preservation of the life or health of the mother."
This is a very emotional issue about which many people feel quite strongly. Were I pregnant with an unwanted child, I don't know what I would do. Fortunately, it is extraordinarily unlikely that I (a sixty-seven year old male) shall ever be in that position. Were my wife, girl friend or daughter to be in that situation, I would offer whatever poor advice I could, but in the final analysis think the decision should be up to her, not to me, subject to the precept that violation of State laws compliant with the U.S. Constitution is not a valid option.
In the light of Roe v. Wade, there is very little for a President to do about abortion. He cannot enact State laws. While he can offer Federal legislation, he cannot enact it. That's up to the Congress. Should the Congress enact Federal legislation banning abortion, there would be at least two problems. It would intrude impermissibly on the prerogative of the States to pass or not to pass such laws. Second, it would eventually need to pass Constitutional muster at the Supreme Court. Any such legislation would, almost certainly, wind up there for review. Both the question of permissible Federal intrusion on the rights of the States and the questions answered in Roe v. Wade would need to be resolved.
True, the President can nominate Supreme Court justices, and they can become Justices with the advice and consent of the Senate. During the next Presidential term of office, it seems likely that there will be one or more Supreme Court vacancies to fill. Even assuming nomination of an anti-abortion nominee and a compliant Senate, no Supreme Court nominee worth a bucket of warm
piss spit would prejudge cases likely to come before him by testifying in a confirmation hearing that he "believes" that life begins at conception, at birth, or when the dogs die and the kids move out of the house. Nor should such questions even be asked: they are theological questions, and have no place in such proceedings.
Moreover, Supreme Court justices sometimes do not behave as either the President or the Senate contemplated that they would. They tend, in most cases, to look to the unique facts, the procedural context of the case, and the U.S. Constitution to make up their minds; when they don't, they should. That is their job.
The Presidency has limits, and that is a good thing. On the abortion issue, about the only potentially effective thing a President can do is to use his "bully pulpit" to express his views. Whether those views are accepted is up to the people, and to the individual States charged with enacting laws impacting on the issue of abortion.
On a probably somewhat tangential question, I find it puzzling that many "conservatives" who lament the demise of States' rights and infringement on individual freedoms feel so strongly that the President should "do something" to prevent abortion. There seems, to me, to be rather a substantial contradiction there.
* Human rights is a very broad term. One of the "Human rights" which seems to exist in the United States is to become a U.S. citizen if born in the United States, regardless of the citizenship of one's parents. In this case, we can infer that Senator McCain did not intend to suggest that a child born outside the United States to, for example, French parents, should become a citizen of the U.S. simply because conceived in the United States but born in France. There are many other similar examples of why "human rights" was not a good question, but I think this will suffice to illustrate the point.