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.

MM says:

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.


17 Responses to Federalist vs. Pro-Life

  1. S.B. says:

    He’s also quite stupid, given that he’s had it explained to him on more than one occasion that American pro-lifers see the overturning of Roe not as the end game, but as the first and necessary step — sine qua non of making any further progress.

  2. blackadderiv says:

    The argument here might have more merit if McCain opposed making abortion illegal at the state level. He does not. It’s not even the case that he’s indifferent on the matter. When South Dakota had a referendum on whether to ban abortion a couple of years ago, McCain supported the ban, and he’s on record as saying that states should ban abortion once the issue was back in their hands (some states, of course, wouldn’t have to ban abortion if Roe were overturned, as their anti-abortion statutes are still on the books).

  3. S.B. says:

    Nah, I shouldn’t say that . . . MM isn’t stupid. He seems to be perfectly intelligent. It’s just that everything he says about politics is driven by one overriding goal: to defend Democrats. Thus, on the abortion issue, he’s very good at making the case that Democrats are better than they are and that Republicans are worse than they are. He can then pretend that both parties are roughly equivalent.

  4. Donald R. McClarey says:

    MM is highly intelligent in my opinion judging from his postings. However his attempt to equate McCain’s return it to the states policy on abortion with Obama’s abortion now, abortion forever enshrining of Roe in federal statutory law per the Freedom of Choice Act is ridiculous. Overturning Roe will simply do exactly what McCain wishes to accomplish: leave the abortion issue up to the people of each state through their elected representatives. If MM wishes to push for a federal Human Life Amendment to the Constitution I will give him every assistance that I can, but judging from his support of Senator Obama, the most ardent pro-abortionist to ever run on a major party ticket for the White House, I doubt if pushing for such an amendment is high on MM’s list of priorities.

  5. Tito Edwards says:


    Your comments are greatly appreciated, though please refrain from such language. We want to be an open forum for constructive dialogue.

    I agree with what your comments say, but I disagree with the tone.

    In Jesus, Mary, & Joseph,


  6. j. christian says:

    I’m not really thrilled by the appeal to federalism as a cornerstone the pro-life movement, but I understand it as a strategic political choice. Similarly, I’m not really thrilled by the fact that much of the dissenting opinion on abortion jurisprudence from the SCOTUS is based on strict constructionist objections to the “right of privacy” rather than an appeal to natural law. I guess we have to make do with what we have for now, and try to make the case that there is something universal at stake here.

  7. Zach says:

    Great rejoinder. I especially like this:

    “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.”

    I have perceived a very authoritarian streak in many of the arguments offered at Vox Nova. What I have yet to see is any of them consider the historical and social fact of pluralism in their politics. This, I think, is a glaring omission.

  8. J. Christian & Zach,

    It does strike me that one is legitimate in being a bit uneasy about federalism and liberal democracy when applied to moral issues. There’s a dangerous modern tendency to equate majority consensus with moral rightness: “The majority wants this, therefore it must be the right thing to do.” Clearly, this is not the case. The majority can very well be wrong, and one can point to tragic examples of this going right back to Athens.

    However, I think that we as Catholics should (especially in the modern world) recognize that liberal democracy can be as much a protection from immoral rule as a tool for it.

    One can make arguments back and forth as to whether one should impose good laws without the consent of the ruled if one had the ability to do so — but the fact we have to face in the modern world is that most people do not agree with the Church as to what is “good” and so we can either appeal to a fantasy oligarchy in which all the right laws would be enacted by fiat, or we may throw ourselves behind liberal democracy as the best way of at least getting the government most of them ask for, if not actually the one they ought to have.

  9. Darwin: I will respond I get a bit of time. But on that last point, democracy is a means to an end, not an end in itself.

  10. Mark DeFrancisis says:

    “Mornining’s Minion” is the first reference to the falcon in Gerald Manley Hopkins’ classic poem, ‘The Windhover.’

  11. MM,

    I do agree with you that democracy is a means, not an end unto itself. (In fact, I think that’s pretty much what I said in my comment directly above yours.) However, it seems to me that it is the only realistically available means in this case. And since in any readily imaginable modern US those “in charge” are unlikely to fully share our worldview, we would be wise to remain strict adherants to liberal democratic principles (rather than oligarchic ones) so that our moral, cultural and civic views can have _some_ voice at the table, instead of none.

    That said, clearly I would not be advocating federalism on the issue if there had been a Supreme Court decision ruling that abortion was invariably illegal — just as I don’t advocate an overturn of Brown vs. Board of Education even though it seems to me that was another example of judicial isogesis in place of exegesis.

  12. Darwin,

    I would take your starting point about the limits of constitutional democracy, and push it in another direction. It is my firm belief that if Roe is overturned using current tactics (and it could easily be), the states will codify the same rights– at least the largest, most populous states, that account for the vast majority of abortion. Sure, some states will not and some that do will introduce European-style restrictions. This is certainly better than the current condition. And yet it is a most imperfect outcome. But it is by far the best that can be done under the current strategy, and it will come with great cost (those “pro-life” justices have a habit of ruling rather poorly on other areas).

    I would argue that Catholics must address the culture, by affirming the consistent ethic of life. I know from personal experience that the advocates of “abortion rights” detest those who oppose abortion from the narrow Republican angle (which they deem hypocritical), and yet remain more open to the consistent ethic of life argument, which frames the abortion issue not as part of the useless “culture war” but as part of a “culture of life”, based on the ultimate dignity of the human person. Christians can persuade only by example. I find the current strategy completely self-defeating, which is waht frustrates me. Look, support for the death penalty has gone down in recent years. Part of it is lower crime, but part of it is the influence of Pope John Paul and the US Catholics that followed his lead. Unlike gay marriage, which I really think is a lost cause, the younger generation remains quite squemish about abortion. They can be influenced. They will not the influenced by the outmoded take-no-prisoners culture-war rhetoric.

  13. Sue says:

    FOCA goes well beyond “codifying Roe” — as bad as that would be, FOCA is MUCH worse. The USCCB has an action page about in on their site: usccb.org/prolife/issues/FOCA/

    McCain wants to overturn Roe and make it possible to end abortion state by state.

    Obama wants to pass FOCA and make it impossible to end abortion. He wants abortion to become a taxpayer-funded unlimited “right”.

    Those don’t sound at all the same to me.

    On what exactly have those pro-life justices ruled badly? Are they prudential issues or intrinsic evils?

  14. Ryan Harkins says:

    In looking at any particular issue, there is the pragmatic view and the theoretical view. (I’m very well acquainted with these, because as a mathematician and theoretical computer scientist, I’m very much on the theoretical, and as an engineer, my wife is very pragmatic.)

    We have, as Catholics, the following:I cannot support any candidate that is not pro-life because the life issue is fundamentally the most important. Neither viable candidate is 100% pro-life. Therefore, I have a dilemma. Who should I vote for?

    There are two options, really: either cast a vote for a non-viable candidate (or throw it away completely), or pick the lesser of the two evils.

    The theorist affirms that anything less than 100% pro-life is not really pro-life. If you can make excuses in some places (such as embryonic stem cell research), you’ve missed the point, and we can’t trust you on any other issue. To pick the lesser of the two evils then is to discard the life issue altogether and look at other hot topics.

    The pragmatist, hopefully, also recognizes that anything less than 100% pro-life is leaving a candidate wide open to error, but he says that there is a gradation. Someone who only supports ESCR is a lesser evil than someone who supports ESCR and abortion. Thus it makes sense to keep the life issue number one, especially when there are wide differences of error between the candidates.

    The thing to note is that either viewpoint–the theorist or the pragmatist–runs the risk of scandal. The theorist risks scandal because by calling a tie on the life issue and looking at others, he gives the impression that the life issues are not as important. The pragmatist runs the risk of scandal because he gives the impression of hypocrisy by claim that life is the most important issue and then not voting for a candidate that is 100% pro-life.

    In truth, I start to feel that Mark Shea is right in voting third party. Does the need to keep Obama out of office outweigh the need to have a clear, consistent message that life is the most important issue there is? (Of course, I say this with the sinking feeling that Obama’s election is pretty much inevitable. Ask me if I still say this if Obama faces a crushing October surprise…)

  15. MM,

    Thank you for the courteous and substantive response.

    There are, however, several areas in which I think it’s important to highlight some disagreement with what you say.

    You observe that if Roe is overturned in the near future, that many states would move to allow abortion to a great extent, and while you say this would be better than the status quo, you say it would be an imperfect outcome. However, I’m unclear why we must avoid this “imperfect outcome” in the short term by preserving the far more imperfect status quo. That the federalist solution would be less that perfect is something I would not question — but it would allow our republic to begin sorting the issue out and experiencing what different restrictions are like in different parts of the country. I think that for the first few months people would be very, very unhappy about this in the pro-choice camp, and even in the “middle” but as time passed we would be able to move into a phase where people argued nearly sanely in the public square about these issues.

    You say that pro-life constructionalist justices tend to rule poorly in other areas — I’m certainly aware this is your opinion, since you are very progressive in your politics and strict constructionalists are unlikely to legislate progressively from the bench. There are, of course, a number of very disturbing trends among the liberal justices ranging from their rulings on eminant domain to “separation” of church and state to restrictions on the free speech to moral issues like gay marriage and euthenasia. While there are areas I might quibble with the results of a strict constructionalist approach to the constitution, the great advantage is that such justices rule on what the constition _says_ not what they wish it said. And so, if we wish our laws to be different, we can change them. According to the more extreme “living constitution” theories, it really doesn’t matter _what_ our laws say, because the justices will rule on what they _ought_ to say instead.

    Now I absolutely agree with you that the primary area in which change on abortion can and must take place is cultural — however I fail to see how this is some sort of either/or question. Shocking as it may seem to one of your persuasion, even many of us who vote conservatively have many friends who think differently and to whom we talk about these issues when possible — not to mention the quiet witness of a life lived in keeping with Catholic principles. But we can’t silo our live from our principles when it comes to the public square. To insist that the right to life _ought_ to be protected while insistantly voting for incredibly pro-abortion candidates woudl be like insisting one wanted racial justice but only voting for rabid segregationalists.

    I commend you for holding back from the excesses of the “culture war” mentality. I don’t think we need more people screaming “baby killer!!!” at their opponent any more than we need more people wearing “Abort Bush!” t-shirts. But you’ve chosen not merely to silently pull the lever for a pro-abortion extremist, but to publicly endorse him on a Catholic blog and to post constantly in his support. I think that’s highly misguided.

  16. S.B. says:

    I would argue that Catholics must address the culture, by affirming the consistent ethic of life.

    This is just the usual false dichotomy. There is absolutely no reason that trying to overturn Roe is inconsistent with also working to “address the culture.” And by the same token, there is absolutely no justification for claiming that you are going to “address the culture,” and then joining sides with politicians who are dedicated to affirming the choice of abortion.

    I know from personal experience that the advocates of “abortion rights” detest those who oppose abortion from the narrow Republican angle (which they deem hypocritical), and yet remain more open to the consistent ethic of life argument, which frames the abortion issue not as part of the useless “culture war” but as part of a “culture of life”, based on the ultimate dignity of the human person.

    Pro-choicers might accept your eager political support when you announce that you are liberal on most other issues and don’t really care about the legality of abortion, but that does not mean that they have themselves become more open to opposition to abortion.

  17. S.B. says:

    And again, it’s right that letting states decide is an “imperfect outcome.” But you completely fail — even after having been reminded of this fact — to recognize that overturning Roe is just a first (and necessary) step, and that by addressing the “culture” at the same time, the larger states would hopefully change over time.

    In any event, it’s a bizarre non sequitur to claim that because it would be “imperfect” to reach a situation in which some states (but not all) restricted abortion, therefore one is going to vote to preserve abortion everywhere and at all times.

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