After a few rocky moments earlier this year, George W. Bush finally solidified his credentials on abortion and earned the respect of many pro-life leaders. The main question now is not what he believes, but how he plans to explain himself. And on this point he needs help. Witness his reaction to the Su preme Court’s monstrous decision in Stenberg v. Carhart, the Nebraska partial-birth-abortion case.
The principal teaching of the abortion cases is that if a woman wants an abortion, the Constitution guarantees her right to get one. Abortion-on-demand has been the default mode of the Court for almost 30 years now. Carhart confirms as much, and demonstrates that the constitutionality of abortion regulations will be determined by ideology, not facts. Abortion may not be restricted, the Court ruled in 1992, if the regulation imposes an “undue burden” on the woman. Carhart establishes that any serious restriction is unlikely to pass this test. Not the age or physical condition of the child, not the absence of any credible threat to maternal health, not the state’s interest in protecting a partially delivered child-none of that could suffice to overcome the supervening right of a pregnant woman to abort.
The decision also supports the previously latent suggestion that the right to abort includes the right to a dead child-even a child capable of surviving the abortion. Once marked for extinction, apparently, always marked for extinction. Carhart raises the obvious question: What about a child who is fully delivered? The distinction between partial- birth abortion and infanticide is, after all, a question of millimeters, and the Court has repeatedly indicated that the mother’s interest, not the child’s, is the exclusive focus of constitutional concern. Whether the justices understand the full import of their own argument is irrelevant. The iron law of logic carries an argument to the conclusion buried in its premises. In James Burnham’s formulation, Who says A must say B.
The strongest sentiment Bush could convey about the horror of Carhart was that he was “disappointed.” He added, “I hope to be able to come up with a law that meets the constitutional scrutiny.” And he reaffirmed that he will “fight” for a ban on partial-birth abortion. Now, “hope to be able to come up with” is a noticeably weak construction that, if nothing else, robs “fight” of any teeth it might otherwise possess. (Imagine Justice Scalia writing in dissent, “I am disappointed by the majority’s decision. In a future case, I hope to be able to come up with some kind of an opinion that captures their favor.”)
This simply won’t do. Bush has had plenty of time to think about his position on abortion. The question, after all, has been contested ferociously in every imaginable forum. Yet the issue that has agitated the nation as none other for more than a generation seems not to have engaged Bush’s focused attention. To be sure, he has repeatedly noted his opposition to partial-birth abortion. But the Supreme Court just ruled that a partially delivered child can have her brain sucked out and her skull crushed, bestowing on this butchery the status of a constitutional right. And the governor allowed that he was disappointed.
Bush and his advisers clearly have a lot to learn about the political dynamics of abortion. His policy appears to be one of friendly noninvolvement: Express pro-life sentiments, but shy from engaging the issue. This strategy has at least two defects: It assumes that Al Gore will play by the same rules (he won’t); and it ignores the necessary implications of Bush’s own statements.
Consider, for example, Bush’s promise “to come up with a law that meets the constitutional scrutiny.” The Supreme Court has made clear that any statute will almost certainly have to include a maternal-health exception. “Health,” the Court ruled years ago, means “mental health,” and mental health in the abortion context means that whatever Lola wants, Lola gets. Lola will get her abortion as long as a doctor is willing to take up the scalpel. A health exception, as the Carhart dissenters noted, would eviscerate any statutory prohibition. Everyone knows this-but does Bush?
Al Gore’s own statement on the decision gives a hint of what lies ahead. It too underplayed Carhart, but in a strategically useful way by including a sentence that ought to give Bush the chills: “A woman’s right to choose must include the right not to be forced to undergo a procedure that might endanger her life or health.” Never mind that all competent medical authority denies that maternal health ever requires partial-birth abortion. Gore will defend “choice” and “maternal health,” running as a moderate who wants to protect “settled” constitutional precedent. Bush inspires no confidence that he is prepared to offer an effective response.
A comparison of the candidates’ websites confirms this judgment. While Gore’s two official sites contain plenty of red meat to satisfy pro- choice appetites, Bush’s avoids controversy. There you will find four muted bullet-points:
–Pro-life with exceptions for rape, incest and life of mother
–Set the goal that all children should be welcomed in life and protected by law
–Supports parental notification, banning use of taxpayer funds for abortion, and banning partial birth abortion
–Supports efforts to increase adoptions
The second and fourth points are so bland that even Gore could embrace them; the first and third will prove impotent against the Democrats’ predictable assault. That third point, as it touches partial-birth abortion, has just been blown away by the Court. Gore will say: “I too favor a ban on partial-birth abortion, but I agree with the Supreme Court that any such restriction must protect the woman’s health. I cannot understand why the Governor is so callously indifferent to protecting maternal health in these tragic and very personal decisions.”
Bush’s wish to avoid the abortion minefield is understandable, but the logic of events, and of his own prior statements, will inevitably drive him there. How can he reply? He needs to change the terms of the debate. As long as the issue is a matter of “the right to choose,” he will lose the argument, because the “choice” mantra has been drilled relentlessly into American heads. Bush’s main chance-maybe his only chance-is to refocus attention on the child who is killed. Here is some advice:
1) Issue a new statement that de scribes the partial-birth-abortion procedure. Take your text from the Court’s dissenters. The public needs to shudder at the horror of the act.
2) Summarize the Carhart decision: It is now impossible to restrict this barbaric practice in any meaningful way. Quote again from the dissenting opinions.
3) Acknowledge that you and Gore disagree on abortion; the split between you mirrors that in the electorate. Say that this division will not soon heal, adding, “In the meantime, I will use my powers of persuasion and the powers of the presidency, as permitted by the Constitution, to keep abortion within all reasonable limits.” Follow Ronald Reagan’s playbook.
4) Cite the massive opposition to partial-birth abortion and the specter of infanticide. Cite Sen. Daniel Patrick Moynihan on the difficulty of distinguishing between the two.
5) Endorse the bill introduced by Rep. Charles Canady that would protect children born alive even if they are “premature.” Say, “Now that the people are prevented from enacting effective legislation to ban partial-birth abortion, this bill is the surest way to prevent a slide into constitutionally sanctioned infanticide. The right of the people to express their sense on so important a matter must not be surrendered to the judiciary. Reasonable people can disagree about abortion, but surely they will wish to protect a child already born. Let this election become a plebiscite. Up or down: Should the Constitution protect that child? Mr. Gore, what is your answer?”
6) Let Gore make fine points about law-agree to disagree, but keep attention riveted on the child: “Mr. Gore, will you or will you not protect her?”
By talking about a palpable human being, whose physiognomy even the dullest intelligence can easily conjure, Bush will find a position that is safer to argue than anything else in this perilous area. Such a strategy comports with the views of 70 percent or more of the people. It may be the only strategy that can put Gore, who now holds the rhetorical high ground, on the defensive.