The Supreme Court, Abortion Jurisprudence, and Pro-Life Politics

Monday, May 17, 2010 \PM\.\Mon\.

Solicitor General Elena Kagan, President Obama’s nominee to the Supreme Court, is already being painted as a moderate by the media and some political interest groups. This portrayal of Kagan is difficult to dispute comprehensively because of her lack of a public record and accompanying statements that delineate her actual personal views on judicial philosophy, thus, complicating the venture of placing her on an ideological spectrum. 

Despite this hermeneutical difficulty, allegedly confident political portraits have been made with the details that we do know about Elena Kagan. The New York Times on May 11 published a piece—“As Clinton Aide, Kagan Recommended Tactical Support for an Abortion Ban”—by Peter Baker discussing a memorandum authored by Kagan while she was working for the Clinton Administration. Kagan in the memo counseled President Clinton to support an amendment, authored by Senator Tom Daschle (D-SD), to Republican-sponsored legislation to ban partial-birth abortion that would include an exception for the “health” of the pregnant women in a ban—so broad an exception that it could be easily employed as a loophole that would prevent few, if any, partial-birth abortion procedures.

President Clinton and his advisors (in this case, Kagan) anticipated that the Daschle amendment would not secure enough votes to pass, but White House support could provide enough political cover for Democratic lawmakers who could reiterate their alleged support of the partial-birth abortion ban, but justify their vote against it because of the lack of inclusion of the broad “health” exception for the pregnant woman. In the end, the Daschle amendment failed and the Republican-sponsored partial-birth abortion ban, endorsed by the National Right to Life, was successfully sent to President Clinton who consequently vetoed it.  Kagan’s advice to the President was successful and held up the passage of a partial-birth abortion ban for six years.

Douglas Johnson, the legislative director of the National Right to Life, before a joint-hearing before the U.S. Senate Judiciary Committee and the Constitution Subcommittee of the U.S. House Judiciary Committee in 1997 said:

“The Clinton-Daschle proposal is a political construct, designed to provide political cover for lawmakers who want to appear to their constituents as if they have voted to restrict partial-birth abortions, while actually voting for a hollow measure that is not likely to prevent a single partial-birth abortion, and which therefore is inoffensive to the pro-abortion lobby.”

In other words, a better reading of the facts is not that Kagan is “in the middle” on abortion, but rather she was advising President Clinton of the pragmatic steps (endorsing a pseudo-ban on partial birth abortion) needed to defeat the actual pro-life measure. Kagan may very well be a “legal progressive” as was recently claimed from the White House defending the nominee from the political left suspicious of her liberal credentials. Read the rest of this entry »


A Tale of Two Votes

Monday, March 22, 2010 \AM\.\Mon\.

In my law practice, when my clients come to me for some legal help regarding some disaster that has occurred in their life, I often will tell them that no experience is wasted if a person learns from it.  What did we learn last night from the greatest defeated suffered by the pro-life cause since Roe v. Wade?  I think that can be summed up in two votes, both involving the Stupak amendment.

On November 7, 2009,  all but one Republican in the House voted for the Stupak amendment, realizing that by doing so they were probably ensuring that ObamaCare passed in the House.  I wrote about this vote here.  The Republicans voted for the Stupak language because Republicans are an overwhelmingly pro-life party, even though they were criticized by some on the right for paving the way for the passage of ObamaCare in the House.  They were joined by 68 Democrats.

Last night the Republicans voted to recommit the ObamaCare bill with the Stupak language.  They were defeated in that effort, with every Republican voting for it, but only 21 Democrats this time joining them.  Stupak, the author of the original amendment, voted against it and spoke against it, satisfied with the worthless executive order figleaf he was granted by Obama.

Read the rest of this entry »


Stupak Deal with Obama, The End of the Pro Life Democrat?

Sunday, March 21, 2010 \PM\.\Sun\.
    US Catholic Bishops: Executive Order Deal A Non-Starter:

    We’ve consulted with legal experts on the specific idea of resolving the abortion funding problems in the Senate bill through executive order. We know Members have been looking into this in good faith, in the hope of limiting the damage done by abortion provisions in the bill. We believe, however, that it would not be fair to withhold what our conclusion was, as it may help members in assessing the options before them:

    “One proposal to address the serious problem in the Senate health care bill on abortion funding, specifically the direct appropriating of new funds that bypass the Hyde amendment, is to have the President issue an executive order against using these funds for abortion. Unfortunately, this proposal does not begin to address the problem, which arises from decades of federal appellate rulings that apply the principles of Roe v. Wade to federal health legislation. According to these rulings, such health legislation creates a statutory requirement for abortion funding, unless Congress clearly forbids such funding. That is why the Hyde amendment was needed in 1976, to stop Medicaid from funding 300,000 abortions a year. The statutory mandate construed by the courts would override any executive order or regulation. This is the unanimous view of our legal advisors and of the experts we have consulted on abortion jurisprudence. Only a change in the law enacted by Congress, not an executive order, can begin to address this very serious problem in the legislation.”

    Richard Doerflinger
    U.S. Conference of Catholic Bishops

  • In deal with Stupak, White House announces executive order on abortion (Washington Post):

    Resolving an impasse with anti-abortion Democrats over the health-care reform legislation, President Obama announced Sunday that he will be issuing an executive order after the bill is passed “that will reaffirm its consistency with longstanding restrictions on the use of federal funds for abortion,” according to a statement from the White House.

    “I’m pleased to announce we have an agreement,” Rep. Bart Stupak (D-Mich.) said at a news conference announcing the deal.

  • “I think we’re witnessing Bart Stupak write the obit for the concept of the “pro-life Democrat” – Kathryn Jean Lopez (National Review).

Further analysis of the text of the order: Read the rest of this entry »


Of Christians, Catholics and Tea Parties (Part II)

Monday, March 15, 2010 \AM\.\Mon\.

In my last post, I wrote about tensions, existing or potential, between the libertarian and social conservative elements in the tea party movement. Whereas before I was speaking of Christians in a broad and general sense, I will now turn to what I think the Catholic response to the tea party ought to be.

As I looked into this topic, I was dismayed by the utter predictability of responses from across the Catholic spectrum. The rad-trad response was irrational as always; the leftist response as arrogant and contemptuous as ever; and the mainstream response was unimaginative. Granted this is a very small sampling, but I wouldn’t be surprised if it was accurately representative of these currents.

28% of the tea party movement, according to the one poll we have so far, is Catholic. This means Catholics are slightly over-represented in the movement. As I also reported last time, 68% of tea partiers attend religious services regularly; for Catholics, that ought to mean they go to Mass every Sunday. Now one thing I think I can say that isn’t very controversial is that when it comes to fidelity to the Church’s teaching on non-negotiable issues, such as abortion, marriage, and parental education rights, Catholics that regularly attend Mass are doing a heck of a lot better than Catholics who don’t. So these Catholics that are faithful to Church teaching on important issues are also supporting the tea party; that to me is an indicator that there is little in the tea party that fundamentally contradicts Church teaching.

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Corporate Personhood: This is… Insane

Monday, January 25, 2010 \AM\.\Mon\.

I have to say something about the latest Supreme Court ruling upholding “corporate personhood”, declaring that corporations and unions (when was their “personhood” established?) can contribute as much money to political campaigns they like in the name of free speech.

I am not a judicial scholar, but this argument looks absolutely rotten to the core. News articles tell me that Republicans are actually happy about this decision, mouthing the words “this is a victory for free speech”, and apparently believing them too.

Because of my limitless capacity for self-doubt, I suppose I can always leave the door open slightly ajar to the possibility that there really is some moral and social good or benefit to allowing multinational corporations and Mafia-infested labor unions to ride roughshod over the American electoral process.

However, because of my sanity, which normally tells me that “an artificial being, invisible, intangible, and existing only in contemplation of law” (to quote dissenting Justice Stevens, quoting John Marshall) isn’t a real person, I think this decision is one of the most anti-democratic, nakedly plutocratic I have ever heard of. Arguments for corporate personhood, and the freedom of speech that follows, ultimately give one a sense of what it is like to live in Oceania in Orwell’s 1984 and hold the revolutionary thought that 2+2 might actually equal 4, even when Big Brother says it equals 5. War is peace, slavery is freedom, and the freedom to buy politicians and elections is “freedom of speech.” Insanity is sane!

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The Culture of Death: The Fruit of False Intellectual Ideals

Friday, January 22, 2010 \PM\.\Fri\.

In his encyclical Aeterni Patris, Pope Leo XIII sought to advance the restoration of Christian philosophy against the modern trends of secular philosophy, emerging from Enlightenment rationalism. The critique of modern intellectual errors and the way in which such false thinking manifests itself in the world has deeply shaded my personal reflection on the tragedy of legal abortion.

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“a sad infidelity to America’s highest ideals”

Friday, January 22, 2010 \AM\.\Fri\.

[N]o one in the world who prizes liberty and human rights can feel anything but a strong kinship with America. Yours is the one great nation in all of history that was founded on the precept of equal rights and respect for all humankind, for the poorest and weakest of us as well as the richest and strongest.

As your Declaration of Independence put it, in words that have never lost their power to stir the heart: “We hold these truths to be self evident: that all men are created equal; that they are endowed by their creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness…” A nation founded on these principles holds a sacred trust: to stand as an example to the rest of the world, to climb ever higher in its practical realization of the ideals of human dignity, brotherhood, and mutual respect. Your constant efforts in fulfillment of that mission, far more that your size or your wealth or your military might, have made America an inspiration to all mankind.

It must be recognized that your model was never one of realized perfection, but of ceaseless aspiration. From the outset, for example, America denied the African slave his freedom and human dignity. But in time you righted that wrong, albeit at an incalculable cost in human suffering and loss of life.

Your impetus has almost always been toward a fuller, more all embracing conception and assurance of the rights that your founding fathers recognized as inherent and God-given.
Yours has ever been an inclusive, not an exclusive, society. And your steps, though they may have paused or faltered now and then, have been pointed in the right direction and have trod the right path. The task has not always been an easy one, and each new generation has faced its own challenges and temptations. But in a uniquely courageous and inspiring way, America has
kept faith.

Yet there has been one infinitely tragic and destructive departure from those American ideals in recent memory. Read the rest of this entry »


An Exercise in Raw Judicial Power

Friday, January 22, 2010 \AM\.\Fri\.

As we observe the sad thirty-seventh anniversary of Roe v. Wade, the Supreme Court decision that overturned all state laws banning abortions and effectively served as a judicial death warrant for tens of millions of innocents, I think it is appropriate to pay tribute to the two dissenting Justices, Byron White, a Democrat, and William Rehnquist, a Republican.  Here are the texts of their dissents:

MR. JUSTICE WHITE, with whom MR. JUSTICE REHNQUIST joins, dissenting.

At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons — convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that, for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical adviser willing to undertake the procedure.

The Court, for the most part, sustains this position: during the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus; the Constitution, therefore, guarantees the right to an abortion as against any state law or policy seeking to protect the fetus from an abortion not prompted by more compelling reasons of the mother.

With all due respect, I dissent. I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers [410 U.S. 222] and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally dissentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.

Read the rest of this entry »


The Personhood Initiative

Tuesday, January 19, 2010 \AM\.\Tue\.

Deal Hudson at Inside Catholic wrote recently about the divisions in the pro-life movement over the Personhood Initiative, a nation-wide effort to legally define “personhood” as beginning at the moment of conception. The testing ground for the initiative was Colorado, where the movement’s founder, an admirable 19 year-old by the name of Kristi Burton, hails from. The lowdown, according to Deal, is that,

Colorado voters turned down the amendment by a stunning 73 percent to 27 percent, in spite of support from Focus on the Family, American Life League, and legal advice from the Thomas More Law Center. But the effort had failed to gain the support of either National Right to Life (NRTL) or the Colorado Catholic Conference.

Whether or not that extra support would have resulted in a less unbalanced result, I cannot say. For those wondering why the Catholic Conference, and many American bishops are hesitant to embrace the PI, the concern was apparently that if it were taken to, and shot down by, the Supreme Court, it would have the effect of “actively reaffirm[ing] the mistaken jurisprudence of Roe.” According to Deal, however, some Catholic bishops are reconsidering their position on the PI.

Not long ago, in the context of the debate over the efforts of Bart Stupak and the pro-life Dems, I wrote about pro-life pragmatism. I argued that the much-derided “incrementalism” is actually the most viable way of winning the long-term war against the abortion industry in light of the facts about where the American electorate stands on abortion. With respect to the PI, and with all due respect to the founders and supporters of this movement, I must reaffirm that position.

Read the rest of this entry »


Radio Personality: Members of the Opposing Party Should be Denied Health Care

Friday, October 2, 2009 \AM\.\Fri\.

Garrison KeillorYesterday Rush Limbaugh said that Democrats should be denied health care.  No, no, wrong radio personality!   If Rush had said anything that stupid, rest assured that you wouldn’t have had to wait to read about it on this blog to learn of it.  The networks would have been shouting the news and condemnatory editorials would have been thundering from newspapers coast to coast.  Instead it was just Garrison Keillor, National Public Radio’s Mark Twain wannabe, who decided that there are just too darn many Republicans and by gosh something should be done about it.  (As they would doubtless phrase a call for gopcide in Lake Wobegon.)  Writing in the Chicago Tribune,  Keillor has this charming sentiment:

When an entire major party has excused itself from meaningful debate and a thoughtful U.S. senator like Orrin Hatch no longer finds it important to make sense and an up-and-comer like Minnesota Gov. Tim Pawlenty attacks the president for giving a speech telling schoolchildren to work hard in school and get good grades, one starts to wonder if the country wouldn’t be better off without them and if Republicans should be cut out of the health-care system entirely and simply provided with aspirin and hand sanitizer. Thirty-two percent of the population identifies with the GOP, and if we cut off health care to them, we could probably pay off the deficit in short order.

Denying health care on the basis of political ideology.  Nice guy.  Of course Keillor was merely joking.  He has a long history of hating Republicans,   but I am sure he merely jokes, and perhaps fantasizes, about the deaths of those who have the temerity of disagreeing with him politically and in reality he would never harm a fly.  At least a Democrat fly.

Read the rest of this entry »


Are All Abortions Equal?

Tuesday, June 9, 2009 \PM\.\Tue\.

As a matter of first principle, yes. As a matter of law, no, and such compromises are frequently necessary. Ross Douthat explains (is it just me, or does he seem somehow less influential as a New York Times columnist than he was as a blogger):

The argument for unregulated abortion rests on the idea that where there are exceptions, there cannot be a rule. Because rape and incest can lead to pregnancy, because abortion can save women’s lives, because babies can be born into suffering and certain death, there should be no restrictions on abortion whatsoever.

As a matter of moral philosophy, this makes a certain sense. Either a fetus has a claim to life or it doesn’t. The circumstances of its conception and the state of its health shouldn’t enter into the equation.

Read the rest of this entry »


You’ve Come A Long Way Baby?

Thursday, May 14, 2009 \AM\.\Thu\.

Female Foeticide

The concept that abortion is a womens’ issue or a feminist issue I have always found bleakly funny.  The dirty little secret about abortion is of course that it has been a bonanza for predatory males.  As actor Gary Graham in this incredibly moving piece notes: “So this abortion thing was pretty damn convenient for a guy.”  Feminist self-deception aside, abortion is all about letting men enjoy sex without consequences.  The consequences are of course merely shifted from the man to the dead child, and to the woman who has to pretend that destroying the life she carried within her was her “right”, and that she feels happy about this, dreadful nightmares notwithstanding, crying  jags that obviously have nothing to do with the abortion, feeling worthless, being unable to quite look straight in the mirror, etc.

Read the rest of this entry »


Mary Ann Glendon

Tuesday, April 28, 2009 \AM\.\Tue\.

mary-ann-glendon

Mary Ann Glendon, Learned Hand Professor of Law at Harvard, is in the limelight now for her decision to deprive Jenkins of his fig-leaf over his invitation to honor Obama on May 17, 2009.  I am not surprised by this development.  She has long been an eloquent defender of the unborn in a completely hostile environment.  She has written many articles on the subject.

Read the rest of this entry »


Scalia on Stare Decisis and Roe

Sunday, March 22, 2009 \AM\.\Sun\.

Hattip to the ever eagle eyed Jay Anderson at Pro Ecclesia.   Justice Antonin Scalia on stare decisis and Roe.  By the way, Scalia’s low estimate of Roe as a legal opinion is pretty nearly universal in the legal world.  Liberal attorneys and judges, even though they support abortion on demand, will frequently agree in private, and sometimes in public, that Roe was a shoddy piece of legal work, and that Harry Blackmun, the author of Roe, was a poor excuse for a jurist.  This of course does not prevent them from supporting Roe since they approve of the result, but it does mean that all of the many cases following Roe are based on an intellectually, and of course constitutionally, rotten foundation.  We can see this in the opinions that strain to make sense of Roe, which, as Judge Bork famously noted, is completely devoid of legal argument.

Read the rest of this entry »


MoralAccountability.com

Saturday, January 24, 2009 \AM\.\Sat\.

A new website: MoralAccountability.com. This is their mission statement:

In the course of the 2008 presidential campaign, a small group of Catholic and Evangelical Protestant intellectuals and activists, while saying that they personally support legal protection for the unborn and oppose the redefinition of marriage, promoted the candidacy of Barack Obama, who made no secret of his intention to wipe out the entire range of laws restricting or discouraging abortion and embryo-destructive research, or of his opposition to all state and federal initiatives (such as California Proposition 8 and the federal Defense of Marriage Act) to preserve marriage as the union of a man and a woman. These men and women assured their fellow Christians and other social conservatives that Obama’s economic policies would reduce the incidence of abortion, and they promised that Obama was being honest when he said that he was opposed to “same-sex marriage.”

Despite these assurances, we fear that the Obama administration will swiftly begin an assault on pro-life laws and pro-marriage policies.

Read the rest of this entry »


Mexico City Policy To Be Overturned

Wednesday, January 21, 2009 \PM\.\Wed\.

It seems that tomorrow President Obama will overturn the Mexico City Policy and begin to provide American subsidized abortions below the border. This is said to occur tomorrow on the 36th Anniversary of Roe v. Wade.

Pray for the unborn children who will be massacred by the horror of abortion.


Proposal: The Fair Fight Initiative

Thursday, December 4, 2008 \PM\.\Thu\.

As is observed every time we discuss Supreme Court appointments, there is very little pro-life progress possible under the Roe v. Wade regime, because anything which is seen as unduly obstructing a woman’s access to terminate her pregnancy (and thus use her constitutional right to “privacy”) is struck down by the courts. And yet, while abortion on demand is decidedly not popular according to the polls, Roe v. Wade mysteriously is. A solid majority of people way they want to keep Roe v. Wade, despite the fact that a solid majority would also be in favor of legal restrictions on abortion well in excess of what Roe allows.

It seems to me that one of the most difficult tasks for the pro-life movement is thus not to convince the population that abortion should be seriously restricted and reduced (banning would right now be a very hard sell, but it would seem that a great deal of progress in that direction would be possible) but rather to convince citizens that Roe is actually an obstacle to this. Thus, “the fair fight initiative”. The purpose would be (and the lawyers on here can inform me if this is indeed a legal possibility) for Congress to pass a law which would officially remove from the federal government (legislature and courts) any ability to restrict or allow abortion.

Read the rest of this entry »


How To Argue About Roe

Tuesday, November 18, 2008 \PM\.\Tue\.

One of the most common complaints directed at pro-lifers is that they are trying to overturn a Supreme Court decision that is popular with the American public. In one respect, this is a fair point. Roughly sixty percent of the country, when asked, says that they would not support overturning Roe. At the same time, roughly 2/3 of people say they would prefer the type of ‘stricter limits’ on abortion that are barred by Roe and Casey.

Noting this disconnect, Peter Suderman recently suggested that pro-lifers should focus on framing Roe as a barrier to compromise on abortion.

Read the rest of this entry »


Cardinal: Obama “Aggressive … and Apocalyptic”

Monday, November 17, 2008 \AM\.\Mon\.

His Eminence the polite and soft-spoken James Francis Cardinal Stafford head of the Supreme Tribunal of james-francis-cardinal-staffordthe Apostolic Penitentiary gave a lecture on November 13 at the Keane Auditorium at Catholic University of America last week titled, “Pope Paul VI and Pope John Paul II: Being True in Body and Soul“.  In it Cardinal Stafford critiqued President-elect Obama as “aggressive, disruptive and apocalyptic,“ and he further added that Obama ran an “extremist  anti-life platform”.

Here are some highlights of his lecture:

“Because man is a sacred element of secular life,” Stafford remarked, “man should not be held to a supreme power of state, and a person’s life cannot ultimately be controlled by government.”

“For the next few years, Gethsemane will not be marginal. We will know that garden,” Stafford said, comparing America’s future with Obama as president to Jesus’ agony in the garden. “On November 4, 2008, America suffered a cultural earthquake.”

Cardinal Stafford said Catholics must deal with the “hot, angry tears of betrayal” by beginning a new sentiment where one is “with Jesus, sick because of love.”

The lecture, hosted by the Pontifical John Paul II Institute for Studies on Marriage and Family, pertained to Humanae Vitae, a papal encyclical written by Pope Paul VI in 1968 and celebrating its 40 anniversary this year.

Stafford also spoke about the decline of a respect for human life and the need for Catholics to return to the original values of marriage and human dignity.

“If 1968 was the year of America’s ‘suicide attempt,’ 2008 is the year of America’s exhaustion,” said Stafford, an American Cardinal and Major Penitentiary of the Apostolic Penitentiary for the Tribunal of the Holy See. “In the intervening 40 years since Humanae Vitae, the United States has been thrown upon ruins.”

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Fr. Frank’s Advice Before Election Day

Sunday, November 2, 2008 \PM\.\Sun\.

This is solid. Thank you Father.


Bishops Call For Both/And Approach to Life

Wednesday, October 22, 2008 \PM\.\Wed\.

Election fever is catching everybody these days, even bishops, and since it’s so fashionable to issue clarifying statements about the 30+ page Faithful Citizenship document, Cardinal Justin Rigali (chairman of the USCCB* Committee on Pro-Life Activities) and Bishop William Murphy (chairman of the USCCB Committee on Domestic Justice and Human Development) have issued a clarification about clarifications of Faithful Citizenship.

Though my tone in stating this is flip, there’s some very good material in the two page letter:

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Kmiec on Korzen, Kelly and Chaput – A Matter of Priorities

Monday, October 13, 2008 \PM\.\Mon\.

“Catholic Answers: Two books for voters who take their faith seriously”– Doug Kmiec, who has lately become something of a poster-boy and spokesman for ‘Catholics for Obama’, reviews Archbishop Chaput’s Render unto Caesar: Serving the Nation by Living Our Catholic Beliefs in Political Life (Doubleday, 2008) and A Nation for All How the Catholic Vision of the Common Good Can Save America from the Politics of Division , by Chris Korzen and Alexia Kelley.

As to be expected, Kmiec finds a sympathetic ear in Korzen & Kelley, given their assertion that Catholics have become ‘preoccupied’ with abortion to the subordination of peace, the environment and welfare:

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