Between Obama’s commencement address at Notre Dame and his Supreme Court nomination, abortion has been brought back into the political spotlight. While he attempts to seize the high moral ground on this issue, it would be wise for the GOP to formulate a winning strategy to reclaim the issue.
1. De-emphasize overturning Roe vs. Wade: Obviously, this is the flashpoint Supreme Court decision on abortion. Every time I read it, I am struck by how lacking it is in constitutional scholarship. As a dissertation on the history of abortion, however, it would get an A+, but thats about it. Also, one is struck by the lengths to which Blackmun went to reach the political decision he arrives at eventually. Playing the role of Solomon, he devised the trimester approach in balancing the mother’s privacy rights against the state’s interests in regulating abortion. However, for all intents and purposes, this practical trimester approach has been replaced by the “undue burden” standard in judging the legality of abortion regulations. Simply put, the important practical implications of the decision are now moot. If the decision is to be attacked, it should not be on its underlying legal rationale (see #2 below). Instead, criticism of its lack of constitutional scholarship or using it as an example of blatant judicial activism would be the preferred line of attack. Also, one could resurrect the Federalism and state’s rights complaints of the original dissents to criticize the decision. There are criticisms on these points from those on the right and the left. But spending time on outright reversal of the decision is time better spent elsewhere.
2. Recognize the right to privacy, but : Near the end of the decision, the legal underpinning of the decision is finally discussed, namely, the “right to privacy” is asserted. And while we can certainly agree with a Scalia-like analysis that you cannot find this explicitly stated in the Constitution, denial of the right is somewhat disingenuous. There are certainly references- freedom of speech, assemby and religion, the right to have firearms, the quartering of soldiers and the search and seizure clause of the Fourth Amendment- which point us in that direction. One of the concerns about the original Bill of Rights was that if rights were not specifically enumerated, then the government may infringe upon those rights. That is the reason for the Ninth Amendment. Regardless, a right to privacy is part of our American collective political psyche and rooted in the writings of the great authors of the Enlightenment which were given life in the Declaration of Independence and validated in the Constitution. Also, conservatives cannot claim a right to privacy in one area (such as gun ownership) and deny the general right in another area (reproduction). Conversely, liberals must understand that the right is not absolute. There are acceptable limits on even the enumerated rights that infer privacy. For example, even though the search and seizure clause protects one’s privacy, the right can be overcome with a warrant. Just as it would be disingenuous for conservatives to assert a privacy right does not exist because it is not enumerated, it is more importantly disingenuous for liberals to claim the right to be absolute. If liberals can propose and pass laws which limit campaign contributions (clearly a “private” act), they lose the argument that governments cannot infringe on other privacy rights, like a woman’s right to choose. Neither side can claim absolute privacy rights for their pet causes.
3. Turn “choice” to your advantage: The liberal and media response to Sarah Palin’s views and the publicity surrounding her daughter’s pregnancy illustrate a huge example of hypocrisy on the part of feminists on the left. It is apparently beyond their comprehension that an unwed pregnant girl may decide to have the child. While stating their goals are to reduce abortions (Obama’s statement), they heap criticism on those who choose the option that does not conform to their worldview. This is a clear example of the pro-choice crowd being anything but tolerant of choice, unless the choice is on their terms. It is also a clear infringement on their privacy rights. Should the Palins be the poster people for the pro-life side? No more than they should be the butt of jokes and innuendo and criticism for the pro-choice crowd and media. Emphasizing that having the child is a legitimate choice is a worthwhile goal and the hypocrisy of the liberal, pro-choice voices should be illustrated whenever possible. They care less about choice unless the choice is on their terms.
4. Emphasize goals: Obama is trying to steal this one from Republicans since the ultimate goal is to reduce abortions. How advocating abortion on demand reduces the abortion rate defies logic. Conversely, it is doubtful that outright bans on abortion will decrease the rate of abortion either. The simple fact is that unwanted pregnancies are as old as antiquity. The presence of abortion laws cannot change human behavior or human hormones, nor can morality be legislated. With the weakening of the family through single parenthood, divorce, two working parents and the general weakening of religious moral values, it creates an unfavorable environment. Roe v.Wade did not cause increased divorce rates or any of the others and a pre-Roe world will not obliterate divorce and the others. Instead, an emphasis on personal responsibility, especially in terms of reproductive choices, would be a worthwhile goal. And that onus of responsibility need not fall on the shoulders of or the between the legs of women exclusively. Painting pro-choice candidates as the candidate of irresponsibility would resonate with reasonable voters because abortion as a form of birth control is simple irrespponsible.
5. Using science- life begins at conception: Despite Blackmun’s assertion that deciding when life begins was beyond the scope of the Supreme Court, he proceeds to do just that for practical purposes in an arbitrary manner. We can talk about “quickening,” viability, the ability to feel pain, the presence of a heart beat or brain waves ad infinitum. The sperm and eggs of a frog and the sperm and eggs of a human are indistinguishable but for the number of chromosomes and the arrangement of genes on those chromosomes. It is only when the sperm fertilizes the egg that a unique something is formed- in the case of the human, human life. What some callously call a lump of cells will, if given the opportunity and correct environment, form human life. This is rooted in scientific, biological, genetic, evolutionary fact. Wouldn’t that be a novel Republican argument- using science and evolution to retain a core value of the pro-life movement. If liberals want to argue it on scientific grounds, then there is simple proof scientifically for this view. Would they then still refer to the GOP as “anti-science trogolodytes?” Most likely because they resort to name-calling when backed in a corner. That unique clump of cells is genetically human life; it will not develop into a frog or monkey, or another appendage, or a cyst or a tumor. That is scientific fact. Defining human life, then, is fairly straightforward and when liberals start to talk about “souls” or “animation” or the philosophical notion of a “person,” who then sounds like the philosophical or religious zealot?
The final five points will be presented in part 2 of these ideas.