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.

Read the rest of this entry »


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!

Read the rest of this entry »


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 »