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Is a Candidate's Abortion Position Irrelevant?

George Will has an interesting column arguing that a Presidential candidate's position on abortion should be irrelevant to many voters, particularly those who support abortion rights and live in states where the majority shares that view.

Many, perhaps most, Americans, foggy about the workings of their government, think that overturning Roe would make abortion, one of the nation's most common surgical procedures, illegal everywhere. All it actually would do is restore abortion as a practice subject to state regulation. But because Californians are content with current abortion law, their legislature probably would adopt it in state law.

It is not irrational for voters to care deeply about a candidate's stance regarding abortion because that stance is accurately considered an important signifier of the candidate's sensibilities and sympathies, and of his or her notion of sound constitutional reasoning. But regarding abortion itself, what a candidate thinks about abortion rights is not especially important.

While Will makes some important points, he also overstates his case. For instance, insofar as voters care about the legality of abortion in other jurisdictions, a candidate's views on abortion -- and the expected likelihood that a candidate's views will result in Supreme Court appointments influence Court jurisprudence on this issue -- would be quite relevant.

tarheel:
I'm not sure that Will's opinion holds up post-Gonzales v. Carhart. He may be technically correct about Roe, but if Roe goes, there is no reason to believe that the abortion fight won't move to Congress, rather than to the states (or, more accurately, in addition to the states).
10.28.2007 12:48pm
Grant Gould (mail):
The Partial Birth Abortion act shows that Congress is plenty willing to get involved; that the same people who say they want the abortion debate back in the states voted for that federal law shows exactly how sincere they are.
10.28.2007 1:04pm
byomtov (mail):
I think Will's case is not just overstated, but ridiculous.

First, as tarheel says, if Roe is overturned abortion may easily come before Congress. I find it hard to believe that no bill would be introduced trying to make it a federal crime.

Second, Will seems to think opinions somehow relate only to one's state. He imagines that there are many individuals living in Los Angeles, say, who think abortion should be legal in San Francisco but are unconcerned about Atlanta. That seems odd.
10.28.2007 1:06pm
Just Dropping By (mail):
As noted above, Will is overly optimistic about Congress' respect for states' rights. If Roe were overruled (which would automatically recriminalize abortion under the laws of, IIRC, approximately a dozen states) you would almost certainly immediately see bills introduced in Congress to make it a federal crime to travel across state lines for purposes of receiving an abortion. Bills for a total federal ban would probably also be introduced each year and only be staved off by filibuster in the Senate.
10.28.2007 1:14pm
mrshl (www):
I will echo other commenters in agreeing that the battle would likely move to congress. But I doubt seriously that congress would be able to pass a total abortion ban. I honestly can't imagine a bigger fight, one that would be fought over and over again as administrations and majorities change. In the long run, most of Congress would probably prefer to punt to the states.

As an abortion rights supporter myself, I have to say I'd like to see Roe vs. Wade overturned and returned to the states. The decision itself was a terrible overreach, and my faith in federalism pretty much trumps my favor for the result. I'm also weary of what the question has done to the Supreme Court. My queasiness over Congress butting in and passing a national law outlawing abortion remains my one last qualm about overturning Roe v. Wade.
10.28.2007 1:25pm
Recovering Law Grad:
I think Will also neglects the fact that the hard-core wing of the anti-choice movement want not only Roe to be overturned but for the pendulum to swing all the way to the other side: due process rights for a fetus. I'd certainly like to know what the presidential candidates think of that view.
10.28.2007 1:37pm
U-M 3L:
The Partial Birth Abortion act shows that Congress is plenty willing to get involved; that the same people who say they want the abortion debate back in the states voted for that federal law shows exactly how sincere they are.

Republicans responding legislatively to viable babies being aborted all across the country doesn't show they are insincere about thinking abortion ought to be decided in the states.

Most of these comments assume that Republicans' 35-year Roe experience hasn't affected their willingness to play abortion-hardball the way Democrats do. Notwithstanding your wrongly attributing wicked intentions, enough Republicans are sincere about federalism to make your contrived fears of a federal abortion ban simple scaremongering.
10.28.2007 1:48pm
tarheel:
I have no doubt that the majority of Republicans in Congress would not want to push for a federal ban on the basis of their belief in federalism. I certainly look forward to them standing up to the sizable wing of their party that wants just such a ban. Cue laugh track...

In any case, Will is just plain wrong to argue that overruling Roe would take this out of the federal realm. Kennedy's language in Carhart pretty much took care of that argument.
10.28.2007 1:56pm
Richard A. (mail):
It will be interesting to see how Clarence Thomas judges the federal PBA law in light of his distaste for the overuse of the commerce clause, from which it derives its power. If he sticks to his beliefs, he will be the liberals' new best friend.
10.28.2007 2:02pm
David M. Nieporent (www):
First, as tarheel says, if Roe is overturned abortion may easily come before Congress. I find it hard to believe that no bill would be introduced trying to make it a federal crime.
There is pretty much a zero chance that there would, absent drastic changes to the U.S. population, ever be 60 votes in the Senate to ban abortion, so there's no reason for this to be an issue.

(Carhart applied to an exceptional situation where only the most hardcore extremists thought abortion should be legal.)
10.28.2007 2:06pm
U-M 3L:
I have no doubt that the majority of Republicans in Congress would not want to push for a federal ban on the basis of their belief in federalism. I certainly look forward to them standing up to the sizable wing of their party that wants just such a ban. Cue laugh track...

Your irrational belief that your enemies are necessarily bereft of principle is sad, not funny. Perhaps funnier is your trembling at the thought of an elected legislature making law in the absence of baseless judicial fiat.
10.28.2007 2:09pm
GV_:
David, since at least 30% of the population thought the Government should not be putting restrictions on partial birth abortion, is it your position that 30% of this country is "hardcore extremists"?
10.28.2007 2:18pm
frankcross (mail):
I think it is pretty clear that Republicans, like Democrats, have little or no dedication to the principle of federalism. It is invoked when they don't want the federal government to impose a policy they dislike. I've conducted research showing that this is true for the judiciary and seen plenty of research showing it to be true for Congress. This doesn't mean they are bereft of principle, only that federalism is not a very strong motivating principle for anybody.
10.28.2007 2:19pm
Roger Schlafly (www):
There is no plausible scenario in which abortions will be unavailable. At worst, abortion could be illegal in 5 or 10 states, but pregnant women in those states would still be able to get abortions by taking a bus to the next state.
10.28.2007 2:30pm
Brian K (mail):
Your irrational belief that your enemies are necessarily bereft of principle is sad, not funny.
This statement would be a lot more believable if republicans hadn't already acted at the federal level. I certainly haven't seen any conservatives arguing for the a repeal of the PBA act because it oversteps federal bounds. (there may be one or two out there, but I haven't seen them) The fact that they did act shows that the majority of republicans dislike abortion a whole lot more than they like federalism...otherwise, the bill wouldn't have passed.

Perhaps funnier is your trembling at the thought of an elected legislature making law in the absence of baseless judicial fiat.
Ah, I see now. you're a principled opponent of abortion paying lip service to federalism. any principle can be broken to thwart those "evil liberals", right? where was the vaunted principle of federalism during the terry schiavo controversy? or how about with legalized marijuana? or gay marriage? or environmental regulation?
10.28.2007 2:32pm
DonBoy (mail) (www):
The 2004 Republican Party platform [pdf] says:

We support a human life amendment to the Constitution
and we endorse legislation to make it clear that the Fourteenth Amendment's protections
apply to unborn children.
10.28.2007 2:34pm
tarheel:

Perhaps funnier is your trembling at the thought of an elected legislature making law in the absence of baseless judicial fiat.

I actually have no problem with this, which is exactly why I -- unlike Will -- think it is an issue voters everywhere should care about.
10.28.2007 3:08pm
Siona Sthrunch (mail):
If Roe were overturned, couldn't the federal government, after Raich, ban abortion under the commerce clause?
10.28.2007 3:33pm
Oren (mail):
Actually I wouldn't mind it if Congress got involved. Roe v. Wade was the best thing that happened to Congressional Republicans since Lincoln - - they can run their mouths non-stop about abortion without fear of alienating the majority of middle class women that vote for them.

I can't imagine that anything Congress could do would make abortion significantly more difficult for women. They can't prevent cocaine from being distributed - what hope do they have with RU486 or any of the various (legal!) cancer drugs that induce miscarriage. Are they going to prosecute poor women (the rich will just hop a plane to CA/MA etc. . ) when they show up in the ER with miscarriages in large numbers? That would be political suicide.

As it is, I've heard many stories of girls that couldn't afford a proper abortion ($400, not covered by their insurance) that popped a half dozen plan-B and went to the E.R. with a miscarriage (>$20k, covered).

~Oren

PS. I'm friends with a guy that does IT work for Planned Parenthood who remarks (hearsay, of course) that the new post-Carhart procedure is to kill the fetus inside the womb via saline injection (essentially withering it away) and then wait for a little while before aborting (thus evading the PBA / D&E ban). This is, of course, much more cruel to the fetus than PBA ever way and a testament to the true sincerity of its opponents when they claim to want to alleviate fetal suffering.
10.28.2007 3:39pm
Oren (mail):

If Roe were overturned, couldn't the federal government, after Raich, ban abortion under the commerce clause?


That would be quite a stretch - even for the Raich majority. They reasoned that there is quite a bit of ISC in illegal drugs and that local supply would fundamentally change that market. There is no ISC in babies (that I know of) and so it would be exceedingly difficult to make the case that the commerce clause applies. Arguments based on the 14th amendment would be far more fruitful.
10.28.2007 3:42pm
Roger Schlafly (www):
It will be interesting to see how Clarence Thomas judges the federal PBA law ...
No need to speculate -- he has already judged it. Read Gonzales v Carhart.
10.28.2007 3:50pm
logicnazi aka TruePath (mail) (www):
In case anyone hasn't noticed the vast vast majority of voters are not substantially concerned about their own personal need for abortions. Once you take account of men (who I understand are more in favor of abortion rights than women), women past menopause, women who are infertile, women who would never personally get an abortion and those who think they are so unlikely to ever need an abortion that they round it down to zero it's clear that the pro-choice vote must be primarily motivated by concern for others. So it's not just overstated but laughably absurd to suggest that your state wouldn't outlaw abortion means you shouldn't care about the state of federal law.

I mean suppose we had the reverse situation. Imagine Roe v. Wade has been overturned and their is a federal law (or even constitutional amendment) barring abortion. Would anyone take the argument that pro-lifers shouldn't care about the pro-choice candidate who was running because even if the government repealed the ban on abortion they would only happen in other states. If not why take this argument any more seriously.

---
U-M 3L said:


Republicans responding legislatively to viable babies being aborted all across the country doesn't show they are insincere about thinking abortion ought to be decided in the states.


Yes, it does. It doesn't matter if we are talking about viable fetuses or toddlers a commitment to the process of federalism means the states get to make their own calls on it. If federalism is going to work at all it must mean these sorts of internal questions are matters of state law period (shy of constitutional violations). Federalism light where the States get to decide unless they make really really bad decisions isn't federalism at all since everyone thinks there issues are really really important.

--

And no people who think partial birth abortions should be legal aren't extremists. People like me who believe that abortion should be allowed at any time for any reason up until the baby has entirely left the womb are the extremists.
10.28.2007 4:00pm
Paul McKaskle (mail):
As to whether California would need to enact a bill legalizing abortion if Roe is overturned, the California Supreme Court, under Rose Bird, found a state Constitutional right to abortion in the Right to Privacy provision which was added to the California Constitution several decades ago. Indeed, the Court even found an obligation for the state to pay for abortions as a matter of state constitutional law. So, no state legislation would be necessary.
10.28.2007 4:14pm
Chris Bell (mail):
I think DonBoy's comment is what we call a Knock-Out Point.

It's in the friggin' Republican Party Platform.....
10.28.2007 4:23pm
Dr. Weevil (mail) (www):
Because (among other things) men cannot have abortions themselves, logicnazi writes (his emphasis, not mine): "it's clear that the pro-choice vote must be primarily motivated by concern for others". So a man whose girlfriend is pregnant with his child, and who wants her to get an abortion so he won't have to provide 18 years of child support, is "primarily motivated by concern for others"? There's a reason why men are, on the average, "more in favor of abortion rights than women", but it's not concern for others.
10.28.2007 4:27pm
David M. Nieporent (www):
David, since at least 30% of the population thought the Government should not be putting restrictions on partial birth abortion, is it your position that 30% of this country is "hardcore extremists"?
On abortion? Yes. (Well, I'm sure a small number of those opponents may have opposed it on federalism grounds -- but I'm estimating the number of principled federalists in the U.S. would fit into a phone booth, if phone booths still existed.)


That would be quite a stretch - even for the Raich majority. They reasoned that there is quite a bit of ISC in illegal drugs and that local supply would fundamentally change that market. There is no ISC in babies (that I know of) and so it would be exceedingly difficult to make the case that the commerce clause applies.
Huh? What do babies have to do with anything? There's ISC in abortion services. There's ISC in medical supplies. That's all that's needed for the left under the commerce clause.
10.28.2007 4:49pm
Cory J (mail):

PS. I'm friends with a guy that does IT work for Planned Parenthood who remarks (hearsay, of course) that the new post-Carhart procedure is to kill the fetus inside the womb via saline injection (essentially withering it away) and then wait for a little while before aborting (thus evading the PBA / D&E ban). This is, of course, much more cruel to the fetus than PBA ever way and a testament to the true sincerity of its opponents when they claim to want to alleviate fetal suffering.


People who are horrified by PBA are horrified because it's equivalent to infanticide. The D&E/PBA claims PBA opponents are forced to jump through are due to the tortured and inane logic of the Court in some of their abortion decisions. It has nothing to do with "sincerity" re: suffering and everything to do with convincing the Court of the legal viability of the attack.

Just because PP and other providers are finding a way around the ban--if your statement is indeed true--how on earth are PBA opponents hypocritical simply because they don't perform a moral abdication by completely giving up and letting the "less painful" method of having scissors jabbed into a skull be performed?
10.28.2007 5:08pm
GV_:
David, I suspect that you're a bit confused about what it means to be an extremist.
10.28.2007 5:09pm
Brian K (mail):
Here is a bunch of results form polls on abortion.

It seem the belief that abortion should never be legal is the most extreme view. it varied from 4-20% (mostly on the mid to lower end) and was rarely higher than the percentage of people who said "always legal"
10.28.2007 5:22pm
AF:
I agree with logicnazi that most people's views on abortion are not dictated by their own abortion decisions. The best evidence for this is the entire pro-life movement, who are concerned about abortion being legal even though they have an unassailable right not to have one themselves. By Will's logic, nobody who is pro-life should care about abortion since nothing the government does will affect them. That he overlooks (and presumably would not endorse) this obvious implication suggests to me that his real goal is not to shed light on the issue, but to soothe fiscally conservative Blue Staters into voting Republican.
10.28.2007 5:33pm
Chris Bell (mail):
Cory J and Oren:

People who are horrified by PBA are horrified because it's equivalent to infanticide.

The "problem" is that the PBA banned a procedure, but not the general action of aborting a late-term fetus.

In a "partial birth abortion" a late-term (or even mid-term) fetus is partially removed from the womb up to the neck before its skull is crushed. Because the fetus is partially/practically out of the womb, it is called "partial birth" by its opponents. Justice Kennedy was clearly upset over (disputed) Congressional testimony claiming that the body of the fetus is sometimes visibly moving outside the womb before the head is crushed.

This procedure is considered by many experts to be the safest way to perform a late-term abortion. The PBAA bans this procedure, but not the result.

Oren's comment comes as no surprise. In fact, the lower courts in Carhart noted that abortion doctors would have to move to procedures like the one that Oren mentions. Poison is injected into the fetus inside the womb, and then the dead fetus is removed. Of course this is much more dangerous for the simple reason that you are (half-blindly) injecting poisonous chemicals into the woman as well. Mortality rates from late-term abortions are expected to increase because of Carhart. However, since the fetus is not "partially birthed" in this alternate procedure, there is no problem under the PBAA.

For me, the real question behind Carhart and the PBAA is this:

"Should we force doctors to use less safe procedures - a choice that will result in increased maternal deaths - in order to avoid performing a procedure that resembles infanticide, even though the fetus will be destroyed in either case?"

Quite a question.

------

... I am now rereading the posts and I am unsure how we got off on this tangent. I apologize to the others and I wont be posting any more on this unless I can't help myself.
10.28.2007 5:36pm
merevaudevillian:
Among other things, the Hyde Amendment and the Mexico City Policy strike me as two significant issues at the federal level.
10.28.2007 6:21pm
hattio1:
Most of the important points have been covered. I would just note for those who say this won't matter because a person wishing to abort could simply go to another state, look up bus tickets from say, Alabama to a major metropolitan city not in a Republican dominated state. Then assume a person doesn't have money for the abortion in the first place. This doesn't even bring up the problem of Alaska, or the problem of the states that ban abortion making it a crime to go outside of the state for the express purpose of having an abortion (I understand such a law would probably be found unconstitutional eventually, but it's the time until eventually that I'm worried abou).
10.28.2007 7:02pm
Ken Arromdee:
There's a reason why men are, on the average, "more in favor of abortion rights than women", but it's not concern for others.

This seems like a catch-22. You're claiming that men are in favor of abortion rights because of self-interest. But suppose the poll had gone the opposite way and it turned out that men oppose abortion rights more than women. Would you then have claimed that men are working against their self-interest and are genuinely opposing abortion out of a concern for (what they believe to be) others?

I suspect the answer is no. If men favor abortion rights, men are doing it because it benefits them, they're not concerned for other people. If men oppose abortion rights, men would *still* be doing it because it benefits them and are not concerned for other people. No matter what the result, you could explain it away in terms negative to men.
10.28.2007 7:42pm
vivictius (mail):
hattio1, it still wouldnt not be a problem in Alaska because abortion was legal there prior to roe v. wade. IIRC it falls under the privacy clause of the Alaska State Constitution.
10.28.2007 8:38pm
kietharch (mail):
The intensity of this argument puzzles me. I live in Washington State. Abortion became legal in Washington State several years before Roe v Wade.
I think it was a Referendum (passed by the legislature, confirmed by the electorate). If there was a movement in the US Congress to override legalized abortion in Washington (and California also) I sure don't remember it.
10.28.2007 9:21pm
Frog Leg (mail):
People here are missing the bigger picture. This column is all part of Will's and others' attempt to make Guiliani palatable to the religious right. People like Will and many at Fox News see Guiliani as the best candidate and the one closest to their personal views (low tax, high security, indifferent to religious issues). That's what this column about, not some grand idea of "moral federalism."
10.28.2007 9:26pm
MDJD2B (mail):

PS. I'm friends with a guy that does IT work for Planned Parenthood who remarks (hearsay, of course) that the new post-Carhart procedure is to kill the fetus inside the womb via saline injection (essentially withering it away) and then wait for a little while before aborting (thus evading the PBA / D&E ban). This is, of course, much more cruel to the fetus than PBA ever way and a testament to the true sincerity of its opponents when they claim to want to alleviate fetal suffering.


No-- killing the fetus with an injection of potassium chloride is less ainful to a sentient fetus than being pulled apart limb from limb (D&D) or having the brains sucked out of its head (partial birth abortion).
10.28.2007 11:00pm
Dr. Weevil (mail) (www):
Ken Arromdee:
I don't care whether my argument could theoretically be reversed, because I'm not making it to trash men. (I am one.) I'm making it to ridicule the silly claim that men who support abortion couldn't possibly do so for selfish reasons. Of course they can, and often do, because a timely abortion can save a man tens or even hundreds of thousands of dollars in child support. I read somewhere years ago that the number one reason women give for having an abortion is "because my boyfriend / husband / father pushed me into it". This sounded quite plausible, and it does put an interesting twist on a woman's right to choose.
10.28.2007 11:35pm
Smallholder (mail) (www):
Pro-lifers who demand states' rights to block abortion and decry federal intervention are as sincere in their support of states' rights as the Antebellum South.

Pro-lifers and Southerners believed that they were doing God's work - to pervert a Seward phrase, they saw a "higher law" than the Constitution.

Considerations about state power vs. national power were made through the lens of ending abortion/protecting slavery.

(To pre-empt the neoconfederates out there, the South was pro national power when it came to overturning Wisconsin's nullification of the Fugitive Slave Act, protecting "property" rights in the territories, use of the federal post-office to stop distribution of abolitionist literature, and for the enforcement of Dred Scott. They were only advocates of states' rights when it benefited the preservation of slavery)

You can take it to the bank that if Roe is overturned, the pro-life forces will ban abortion in the conservative states, and then begin campaigning for a national ban to bring Massachusetts and California to heel.

This isn't hypocritical. The pro-life position is manuevering to save lives. They play the states' rights game and the wiggle on the margin game about PBA because they are forced to do so. But each abortion they prevent is a moral victory. Just because the Constitution says you can't have a blanket ban doesn't mean that you stop working for some bans.
10.29.2007 8:34am
Nobody (mail):
With regard to interstate commerce, Congress could pass a law saying "It shall be unlawful to perform an abortion using any supplies (drugs, anesthesia, surgical supplies, operating room furniture, electronic monitors, etc) that move or moved in interstate commerce or affect interstate commerce."

That would pretty neatly ban all abortions.
10.29.2007 12:03pm
Eli Rabett (www):
Will is engaging in asymmetric warfare. Those who oppose the availability of abortion tend to do so intensely. Those who support it are more diffuse in their support. By trying to further separate the latter from the issue he is transparently trying to take the issue out of play for one side. This is a useful tactic for Republicans.
10.29.2007 12:41pm
ellisz (mail):
Will may be making this point for his own pro-Rudy reasons, but it's still true -

"But regarding abortion itself, what a candidate thinks about abortion rights is not especially important."

by my count, since Roe, we've had 3 pro life presidents, 3 pro choicers, and Nixon (I don't know where he stood - anyone?) and since Roe, the law on abortion has been more or less intact - wide open for the first 3 mos, etc. (I'm not concerned here with partial birth or its equivs, that's a fringe procedure.)

also, Will isn't saying it's unimportant - just not very important. given the extreme unlikelihood of Roe falling and then Congress moving decisively on the issue, it makes little sense to base your vote on abortion, unless it's your key issue.
10.29.2007 1:54pm
JosephSlater (mail):
Frog Leg has it right.
10.29.2007 5:51pm