Federalist vs. Pro-Life
The quixotically named Catholic blogger Morning’s Minion has a post this morning in which he (yet again) tries to make the case that the pro-life issue is basically a wash between Senators Obama and McCain. Now, I know that many of our readers already agree that MM’s conclusion is wrong, and deeply wrong, but I want to focus on why this particular argument is wrong, because I think it’s an important question for Catholics living in our republic. So I’d like to ask that people avoid basic “I don’t see how any good Catholic could vote for Obama” comments in favor of discussing whether federalism can be a pro-life position, or is simply a passing of the buck.
Basically, neither candidate can be called “pro-life”….
OK, abortion. The starkest difference here is not related to the need to grant legal protection to the unborn child. No, the candidates instead indulged in a quaint little constitutional debate. Obama: “the constitution has a right to privacy in it that shouldn’t be subject to state referendum”. McCain: “I think decisions should rest in the hands of the states. I’m a federalist”. Sorry, but neither position qualifies as pro-life. It is a debate about which level of government has the right to strip legal protection from the unborn child…
Bottom line: it is simply impossible to say one of these candidates is “pro-life” and the other is not. It is simply impermissible for a Catholic to say that one can vote for one, but not the other. Anybody who tells you otherwise has an ideology to sell.
Well, clearly someone has an ideology to sell, but let’s look at this federalism issue — which is essentially the same one that law professor Douglas Kmiec has be flogging throughout the Catholic online world as Sen. Obama’s chief Catholic apologist. Kmiec too has argued that the federalist argument, that Roe v. Wade should be overturned and the question of regulating or banning abortion be left to the states, is not in fact a pro-life position at all, and that the true pro-life position would be to hold that the constitution already has an implicitly right to life within it and thus abortion is already banned at a national level. This is a position which no current Supreme Court justice holds, and so Kmiec maintains that we are in fact not one vote away from a pro-life Supreme Court decision, but rather five. Having thus made progress on the judicial from seem unattainable, Kmiec then argues that an Obama presidency would actually move the US closer to a culture off life — apparently because despite Obama’s vigorous support of abortion rights people would suddenly realize that they love each other and all life so much tht they’d never want to do such a thing. (If this sound a bit airy to you — you would be right.)
Treading the same ground, MM describes the difference between Obama and McCain as expressed in the debate as being, “about which level of government has the right to strip legal protection from the unborn child.” I would argue, however, that this is far from true.
Let us consider for a moment where we find ourselves. In 1973 the US Supreme Court handed down a decision asserting that the implicit right to privacy (which it had found several years before in order to abolish state laws restricting the sale of birth control) clearly gave women the right to have an abortion without facing restrictions from state laws. Even many liberal law scholars now admit that the reasoning behind this was rather poor — but it allowed some very well educated men who thought they knew what was best for the country to short circuit was looking like a long and contentious process of changing state laws regulating abortion.
Since that time, anti-abortion advocates have consistently sought the overturn of Roe v. Wade so that abortion restrictions can be determined at the state level. Critics of the movement (Kmiec now quite visible among them — and MM apparently a lesser acolyte in the same procession) have accused pro-lifers of being “obsessed” with Roe.
Now they do have a point (though a slight one) in that returning the abortion issue to the states would most certainly not result in a nationwide ban — and indeed I suspect that at most half a dozen states would move to actually ban abortion in nearly all cases. Other states (including very populous but liberal ones such as New York and California) would probably allow abortion virtually on demand throughout pregnancy, and offer to pay for it with state funds as well.
However, reducing this predictable result to “a debate about which level of government has the right to strip legal protection from the unborn child” is willfully obtuse.
As Catholics, we see there as being a necessity of bringing our civil laws into conformance with moral law. Since we see abortion as the destruction of a innocent human life, and since the destruction of innocent human life is something which the state should seek to prevent, we see it as essential that the state be moved to protect unborn life — or at the least cease protecting abortion as a “right”.
Our current situation is one in which this is made impossible by Roe, so clearly a first step is to see Roe reversed. With that done — we could then as Christians attempt to use public discourse and democratic institutions of our states to gradually bring our country’s laws in line with what we believe is right. At that point, the key question would of course be who supports restricting abortion and who supports making it widely available. And there is the really key difference which MM does not seem to want to discuss — the man whom he desperately wants to be president (if the frequency of his posts defending voting for Obama is any indicator) is someone who wants abortion to be as unrestricted and widely available as possible. Underneath this “quaint little constitutional debate” there is a real and important moral difference: Obama either does not believe that unborn human beings represent unique living persons or he does not believe that all unique living persons deserve to have their lives protected from destruction.
Now some Catholics (and perhaps MM falls in this category) are not at root comfortable with the moral implications of a democratic form of government. “Error has no rights” as the old saying goes — and perhaps MM feels it is a grave moral compromise to allow abortion laws to be settled on a democratic basis. Perhaps he would prefer to imagine a world in which a court or autocrat could simply impose a complete abortion ban without all this messing about with debate and voting and compromise.
The great difficulty with liberal democracy, according to this way of thinking, is that it’s possible for those who are right to lose. But let us be realistic — as orthodox Catholics we make up less than 10% of the population of our country. And among the “elites” who fill courts and legislature and corridors of power — we doubtless make up less than one in one hundred. If someone is to govern by fiat, it will not be us. And indeed, right now we are living with the results of government by fiat by those who do not understand human nature and human dignity as we do.
Orthodox Catholics will never be the oligarchs of our nation (nor am I convinced that we should have oligarchs even if we could — but that’s another post) and so if MM chooses to follow in the footsteps of Kmiec by deriding any progress towards bringing our laws respecting abortion more into conformance with our morals via the democratic process, preferring instead some fantasy in which it is completely banned through one fell swoop, what he is doing is choosing to support a status quo in which abortion is enshrined as a right and we as members of this republic are given no opportunity to make changes in that status quo via the democratic process.
In that, he is wrong.