Robert Novak took Fred Thompson to task yesterday in a piece in The Washington Post over his comments on the abortion issue on Meet the Press.
Fred Thompson was well into a prolonged dialogue about abortion on NBC’s “Meet the Press” on Sunday when he said something that stunned social conservatives: “I do not think it is a wise thing to criminalize young girls and perhaps their parents as aiders and abettors.” He then went further: “You can’t have a [federal] law” that “would take young, young girls . . . and say, basically, we’re going to put them in jail.”
Those comments sent e-mails flying across the country, reflecting astonishment and rage from pro-life Republicans who had turned to Thompson as their best presidential bet for 2008. No serious antiabortion legislation ever has included criminal penalties against women who have abortions, much less their parents. Jailing women is a spurious issue raised by abortion rights activists. Interviewer Tim Russert did not bring it up in his questioning. What Thompson said could be expected from NARAL Pro-Choice America…
…Thompson’s comments revealed an astounding lack of sensitivity about abortion. He surely anticipated that Russert would cite his record favoring states’ rights on abortion. Whether the candidate just blurted out his statement or had planned it, it suggested a failure to realize how much his chances for the Republican nomination depend on social conservatives.
In my opinion, this is a good thing. While I fail to see the trouble with the statement Novak cited above about the criminalization of abortion (after all, isn’t it a logical consequence of a federal law that needs to be addressed?) Thompson’s interview as a whole belies the fact that this is an issue that isn’t a natural priority for him. He still seems to struggle too much in defining his position, and in reconciling what he believes now with what he believed in the past.
That said, I think he brings up an important point, namely, the question of whether there should be a Constitutional amendment to outlaw abortion. Thompson says “no.” Despite my lack of confidence in Thompson as a serious candidate, this highlights something that pro-lifers need to honestly consider. The debate over how to achieve pro-life legislation has grown increasingly rancorous, and there is quite a lot of division within the ranks of those dedicated to defending the unborn.
I find that my position on how best to proceed politically on the abortion issue has changed from one prompted by unthinking urgency to something I hope is more pragmatic and possible. My position as it stands can be defined as follows:
1.) A Constitutional amendment on abortion is:
a.) Not achieveable in the current socio-political climate.
b.) Not strictly necessary.
On the first point, while I understand and appreciate the desire to pass a Constitutional amendment and in fact do not oppose one - properly constructed - the reality is that this issue cannot survive the amendment process. I do not believe that this is mere opinion, or an overstatement of any kind. In order for a an amendment to be ratified, it must pass both houses of Congress by a two-thirds majority and then go on to be approved by a three-quarters majority of the states, through either state legislature passage or state conventions. The passage at the state level need only be a simple majority, but as this is not so at the federal Congressional level or at the national level of aggregating the votes of states, it will NOT happen in a country as divided as ours is over abortion.
I say this assuming that the only amendment true pro-lifers would want passed would be one that does not have exception clauses. Anything less would de facto grant some abortion rights (ie., rape, incest, life of the mother) within the context of the Constitution itself, thereby setting a dangerous precedent that at this time does not exist. The SCOTUS has falsely determined that the Fourteenth Amendment of the Constitution protects the right to abortion under the Due Process Clause’s right to privacy; it does not, however, claim any explicit Consitutional guarantee that abortion should be legal (though some will argue that the Ninth Amendment comes into play here, despite the fact that even the Roe decision declined to support this). Passage of an amendment with exception clauses would, I think, deepen the danger in the long-term, not alleviate it.
On my second point, it could more effectively be argued that the Fourteenth Amendment in fact protects the rights of the unborn under the very Due Process Clause that Roe supposedly found justification for abortion in. The difficulty is that the Fourteenth Amendment does not speak to the question, and logically defines citizenship (and the subsequent jurisdiction of the contents of the amendment) to apply to those “born or naturalized in the United States…”. It would be odd, one must admit, for citizenship to be granted prior to birth, as place of birth is an essential and sensible component in the legal recognition of citizenship.
There is, however, no reason to deduce that those who are not yet born are excluded from the protections of the Constitution. The silence of the law on this matter is where the Devil has found his advantage.
On the tenuousness of the justification for Roe, Justice Renquist’s opinion stated:
To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today.
This debate will continue until a conversion of this country takes place, or until our own barbarity leads to the destruction of our nation by some other, more coherent force. At the federal level, the abortion issue seems to be at an ideological impasse.
Which leads to the second part of my position:
2.) Due to the silence of the Constitution on this matter and the lack of popular will to change this, it is clearly, according to the Tenth Amendment, a states issue. As the Tenth Amendment states:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Many in the pro-life movement find the movement of jurisdiction on this matter from the federal level to the state level to be unacceptable. They wish for what amounts to be an imperial edict from the federal government without understanding that the United States has provisions that disallow such edicts from occurring. As I mentioned above, the amendment process requires a ratification by the states, meaning that any attempt to pass a Constitutional amendment remains at heart a states’ rights issue.
Considering the fact that the obstacles to passing a Constitutional amendment have become so strong (ie., Democratic Congress; erosion of true pro-life positions from GOP members; issues with exception clauses being introduced into an amendment; the needs for a three-quarters majority of the states for ratification, etc.) it seems only sensible that we should support a movement toward this issue being decided at the individual state level.
The reasons for this become immediately clear when we look at a breakout map of the country on the issue. From this USA Today analysis done last year, we can see the advantage to a state-by-state approach:

On an immediate basis, we have 49.6% of the population willing to support legislation that restricts abortion access. An additional 15.6% are on the fence, which means that a least some legislation is not out of the question. While it’s quite obvious that this is a far cry from the 75% of states that would need to have a simple majority of citizens convicted about the need for a Constitutional amendment in order for one to pass, we could at least see progress in between 50-65% of the country in a short time.
Isn’t this better than bashing our heads against the wall every four years trying to find a Presidential candidate whom we hope will be sufficiently pro-life, and then wondering what he will actually do about it when and if he achieves office?
By the time the next President is sworn in, we will have lived 20 out of the last 28 years under Republican Presidential leadership, and yet Roe still stands.
What we are doing is not working. We elect Presidents who say they will work toward a Constitutional Amendment on abortion, when they have no formal role in the process of proposing an amendment. When there is a sitting Republican President and a Republican majority in Congress, have we seen any attempt to have such an amendment sponsored?
The reality is clear - either these leaders know that such an amendment will never be ratified and so they do not make the attempt to have one passed, or they simply do not care enough about it to do anything other than campaign on a platform that pays lip service to the idea.
Either way, the consequences are disastrous, and 1.5 million children in the U.S. are murdered annually in the womb. We are a nation steeped in the blood of the innocent, and yet we continue to allow ourselves to be deceived by politicians who promise solutions and deliver little, if anything at all.
If the pro-life movement would wise up and push for this issue to go back to the states, we could start to gain traction. The more local the issue, the more the people are involved, and the higher the likelihood that things would begin to change.
In addition, the other pressing issues this nation faces - the looming economic crisis, the devaluation of our currency, the devastating effects of globalism and open borders, the questionable legality (and subsequently morality) of our war in Iraq, the failure of our foreign policy to work toward the good of our nation, the increasing bloat and spending at the federal level, etc. - could all become deciding issues during Presidential elections.
We could stop throwing our votes away on “viable” candidates who are doing nothing for the long-term good of this nation simply because they play the pro-life card, and start looking for candidates who have real answers.
Wouldn’t this, after all, be the better way?