Abortion: The Courts and Federal Funding

Saturday, March 06, 2004



This article is intended as a follow up to questions I have received from my article Is George Bush Really Pro-Life?

I am pro-life and wholeheartedly support the effort to create a Constitutional Amendment to protect the right to life of the unborn.

Bush has never promised to back such an amendment, and Bush has never proclaimed himself solidly pro-life. He was criticized by his own party in the 2000 race for his wishy-washiness and inconsistencies on this issue. Bush is not a pro-life candidate in the way most pro-life Christians want. Because Kerry takes such an adamantly pro-choice position publicly, many pro-life voters are uncritically turning to Bush.

Every time I bring up that Bush has never said he was against all abortions, and he's no better than Kerry, two issues are raised by fellow pro-lifers:

1) Supreme Court appointments.
2) Federal funding of abortion.

On the Court issue, Bush made the following comments during his run for Presidency:
Q: Should a voter assume that all judicial appointments you make to the Supreme Court will be pro-life?
BUSH: Voters should assume that I have no litmus test on that issue or any other issue. The voters will know I'll put competent judges on the bench, people who will strictly interpret the Constitution and will not use the bench to write social policy. I believe in strict constructionists.
There we have it. Bush will not use the abortion issue as a litmus test for appointing judges to the Supreme Court. We are just as likely to get judges who support Roe with Bush as we are with Kerry. Let me delve into this a bit further, because many Bush supporters do not quite believe the obvious.

I'm not sure exactly what a strict constructionist is, but I tend to think it means one who interprets the texts in a conservative, nearly literal manner in the sense most likely intended by the author. If anyone disagrees this is what Bush means, please feel free to leave a comment.

The literal words of the Constitution are as follows:
Amendment XIV: Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.
This was partially the section the Court referred to in Roe v. Wade to come to the decision that the unborn cannot be considered persons with legal rights. One must be born to have the rights of a citizen.

The court also appealed to rights of born citizens in Amendment IX and XIV - particularly interpreting the right to medical privacy broadly. However, the Court interpreted the actual Constitution quite literally in stating the rights of the born supersede those of the unborn. Indeed, the fact that the Constitution did not define the unborn as having rights is clear in the fact that abortion laws were left as states rights prior to Roe.

So, the question that went before the Court could have been re-phrased as a question whether the rights of a non-citizen supersede the rights of a citizen. Stated in this manner, many social conservatives would always side with the citizen.

Am I arguing the Court was right?

Morally, abortion is murder. However, legally, the Court may have been right, as much as that frustrates those of us who are pro-life - which is why we need an amendment for life.

Some people indicate to me that they believe that Bush will appoint judges who believe in natural law and are steeped in the philosophy of Aquinas. They believe this will somehow change the ruling made by the Court in 1973. It will not. It is interesting to note that the majority opinion did consider the opinion of Thomas Aquinas and the Catholic Church in its arguments. For example, justice Blackmun stated the following:
Although Christian theology and the canon law came to fix the point of animation at 40 days for a male and 80 days for a female, a view that persisted until the l9th century, there was otherwise little agreement about the precise time of formation or animation. There was agreement, however, that prior to this point the fetus was to be regarded as part of the mother, and its destruction, therefore, was not homicide. Due to continued uncertainty about the precise time when animation occurred, to the lack of any empirical basis for the 40- 80-day view, and perhaps to Aquinas' definition of movement as one of the two first principles of life, Bracton focused upon quickening as the critical point. The significance of quickening was echoed by later common-law scholars and found its way into the received common law in this country.
In a later part of his decision, he went on to state:
The Aristotelian theory of "mediate animation," that held sway throughout the Middle Ages and the Renaissance in Europe, continued to be official Roman Catholic dogma until the l9th century, despite opposition to this "ensoulment" theory from those in the Church who would recognize the existence of life from the moment of conception. The latter is now, of course, the official belief of the Catholic Church. As one brief amicus discloses, this is a view strongly held by many non-Catholics as well, and by many physicians. Substantial problems for precise definition of this view are posed, however, by new embryological data that purport to indicate that conception is a "process" over time, rather than an event, and by new medical techniques such as menstrual extraction, the "morning- after" pill, implantation of embryos, artificial insemination, and even artificial wombs.
I completely disagree with Blackmun's final conclusion that conception is a process and that the beginning of life cannot be defined accurately. However, Blackmun would be correct that the Constitution does not provide a clear definition regarding the personhood and rights of the unborn.

I also think Blackmun may have misinterpreted the application of Aquinas to this issue, though this is open to debate. I am sure some Catholic theologians would take Blackmun's side on the proper interpretation of Aquinas, though I am not one of them. The bottom line, however, is that we cannot pretend that he completely ignored the Church or Aquinas. Rather, he simply interpreted the application of Catholic tradition in this instance wrongly from our point of view.

Which brings me to the point that Bush can appoint all the "natural law" judges and "strict constructionists" he wants, and it does not mean Roe v. Wade will be overturned. The only way to overturn Roe is with a Right to Life Amendment that defines the beginning of human life and human rights at conception!

Indeed, even if Roe were overturned, all this would do is put the issue back in the hands of the states. There is nothing in our current Constitution that would require states to protect the unborn, and it is unlikely most states would criminalize abortion these days.

Consider this as well, Blackmun, who wrote the majority opinion and is quoted above, was a Republican appointee!

At the time of Roe, 4 of the 7 Supreme Court Justices were Republican appointees. And the Democrats were more moderate in those days by today's conservative standards. Today, 7 of 9 justices are Republican appointees, and Roe is not being overturned.

So what difference do conservative judges make?

The answer is none. The judges ruled the way they did in Roe because the Constitution is written the way it is. Even a true strict constructionist knows this, which is why such Republican appointees as Sandra Day O'Conner or David Souter have disappointed pro-lifers. Bush's promise of strict constructionists is meaningless in the abortion debate - and Bush knows this - as does Kerry!

If we don't like Roe, we need to change the Constitution more than we need to change the Court.

Kerry's stance is remarkably similar in tone to the conservative rhetoric. Kerry states the following:
I don't want to get into an argument about litmus tests. The focus is on the constitutional right that Roe established in America. I want jurists to agree, who swear to uphold the Constitution. I want jurists who understand the Constitution that way...,The test is basic -- any person who thinks it's his or her job to push an extreme political agenda rather than to interpret the law should not be a Supreme Court justice.
Kerry is basically saying the same thing as Bush and the Republicans - that the Court must interpret the Constitution strictly and not push their own agenda!

Kerry states that while he personally opposes abortion, the Constitution clearly does not give rights to the unborn, and he will not appoint a judge who makes her or his own rules of interpretation to get around this. Kerry is basically saying that it is not a judges job to create law. The judge should interpret law, and any judge who reads rights of unborn into the current Constitution is reading something that isn't there.

What about federal funding of abortion?

To my knowledge, Kerry has never directly promised that he would enact federal funding of abortion as President. However, he has voted for some funding of abortion in the past, and there's no reason to assume he might not do it again.

This is a more serious issue. It is a deeply troubling issue for me personally, and I strongly urge the Democrats and Kerry to reconsider this position. If Kerry were running against anyone but Bush, I would likely vote against Kerry because of this issue - and who knows, I still might decide to simply not vote at all!

Take heed Mr. Kerry - you could lose votes to the "stay at homes".

Basically, I oppose federal funding of abortion because this forces me to pay for something I deem deeply immoral. I have written elsewhere that Democrats ought to move to the middle on issues such as this. I believe that most Americans can understand the argument that pro-lifers do not want to pay for what they deem immoral. Even many pro-choicers will support the idea of cutting federal funding to abortion on these grounds. While the pro-choice camp will not want laws limiting abortion, many of them are probably ambivalent on the issue of federal funding.

There may be other areas for compromise as well, such as the overwhelmingly popular late term abortion ban that Kerry resisted. Parental notification may be another issue where compromise can be considered. I would strongly urge Kerry and the entire Democratic party to consider a move to the middle on abortion if for no other reason than to gain "swing votes" among pro-life Democrats, which includes many Catholics.

This raises another issue I have with Kerry. I do share a particular concern about Kerry with many more conservative Catholic voters, and the concern is that it is not clear how his own Catholic faith gives any shape to his positions.

Kerry claims to be personally opposed to abortion, but as a legislator, he will fight to uphold Roe under an argument of separation of Church and state. Catholic teaching does not permit such a sharp separation of Church and state, though it does permit a distinction between the secular and sacred, and a certain legitimate pluralism in the application of Church teaching to the political realm. Other religions teach a similar principle, and people of faith throughout America hold a more nuanced view than Kerry is articulating.

Kerry argues his position of separation of Church and state too sharply. In doing so, he goes to the point of painting Bush as a pro-life extremist, which Bush is not. Kerry also supported the war in Iraq, though he seems to have wanted U.N. support. This is similar to the Pope's position, but in the specific case, he departed from the advice of the USCCB. He is also a remaried divorcee. What I am pointing out is that it is unclear how his faith is apparent in the choices Kerry makes.

Does Kerry ever really allow Catholic teaching to challenge him? Does he ever allow Catholic teaching to spur him to a vision as a leader that would take the Democratic party in a new direction? Is a vote for the Catholic Kerry any different than a vote for any non-Catholic Democrat?

Kerry seems to think it shouldn't be. While I agree that Catholics need to be careful not to impose their views on others when the overwhelming consensus is against Church teaching, I would like to see all Catholic politicians gently urging a Catholic vision of the common good. The Church and other faith groups have something valuable to contribute to the public discourse of politics on social justice, peace, and the promotion of a culture of life.

I have no problem with Catholic politicians making compromises with the Church's teachings in particular instances where people of good will can disagree. I do have a problem with them completely ignoring the teaching of the Church and other religions - shutting out the voice of the churches and mosques and synagogues.

Kerry's philosophy of a sharp separation of Church and state leads to denying any possibility of any vision comensurate with people of faith. In a nation where the vast majority of people are people of faith, Kerry is disconnected from the belief of the common person. Even Lieberman has articulated concern about the Democrats alienating people of faith by making such a sharp separation between Church and state.

But let's return our attention to Bush for the moment.

On the specific issue of federal funding of abortion, I also oppose the war in Iraq on moral grounds. Bush got us into an unjust war. I also oppose the death penalty on moral grounds. Bush reinstituted the federal death penalty after decades of non-use. So, I'm in a bit of a conundrum here. Both Bush and Kerry are forcing me to pay for things I deem deeply immoral.

Some people decide that the unborn are more deserving of protection than convicted criminals and Arab nations because they are clearly innocent of any crime or sin. I do not accept this argument. I believe it to be playing God to even try to decide which life is more valuable. All human life is precious in the eyes of God, and "vengeance", or justice, belongs to God alone.

Which brings me to the bigger problem I have with Bush on his use of federal funds to kill people.

If the government funds an abortion, the government does not decide who will be aborted. This is still the woman's choice - a wrong choice - but not my choice or the government's choice. True, she's using my money and yours to implement this immoral choice. However, nobody in the government is playing God and saying that this specific child should die. If the women chooses not to abort, the state will defend the baby when the baby is born. Rather than determining who will die, the government is simply failing to protect this particular person.

On the other hand, when the government executes a criminal or wages a war, the government - acting in my name - is deliberatly deciding that this particular person should die!

The government is not simply using my money to allow another person to do something I don't like. They are also using the authority I invest in them to determine who will live and who will die!

Thus, while abortion is a gravely immoral act that I would love to see made illegal, and while federal funding of abortion makes me queasy, it is morally worse to allow the government to wage war or execute others in our names!

Peace and Blessings!

Readers may contact me at jcecil3@attglobal.net


posted by Jcecil3 6:15 AM

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