Saturday, February 25, 2006

National Review is wrong on S.D. abortion law

The venerable National Review has this comment, about the forthcoming South Dakota law banning virtually all abortions, in it's "Window on the Week" column:

"Federal courts will almost certainly strike down the law before it takes effect, and South Dakota will have to pay the fees of the abortion clinics’ attorneys. Subsidizing the ACLU and Planned Parenthood may not be the legislators’ intent, but it is the effect of their actions. There may be some value in putting the state’s opposition to abortion on record. But the legislators could have accomplished that by passing a resolution committing themselves to the goal of protecting unborn human life from unjust killing as soon as it becomes possible — and committing themselves to participating in a practical strategy, combining legislation and litigation, to make it possible. The current bill, though idealistic, is a distraction from that task."

I am very sorry the National Review has taken this tack. The legislators in South Dakota have done exactly the correct thing here, and all over the country, stouthearted legislators are eager to do the same. Now this National Review comment will be thrown up to them, and have the (surely unintended) consequence of aiding and abetting the promise-everything-but-do-nothing-meaningful phony prolifers who already have too much power in our political system.

Yes, it's true the the litigation will likely come out as NR predicts, and that means paying the pro-aborts' legal fees. But by that argument, you never do anything that isn't a sure thing when it gets litigated, and that's a ridiculous standard to set. And it is not certain how the resulting litigation will result. To the extent that pursuing litigation is worthwhile, it is necessary to make cases happen. Imagine, back in the 50s, if folks had given similar advice to the NAACP: "don't go there--all you'll do is lose this case, just like before, segregation will be ratified again!, and you'll put money in the segregationists' pockets!"

The relatively small amount of money that unsuccessful litigation would actually put into the pro-aborts' pockets is far outweighed by the tax money that flows to these folks -- and that's deliberate and voluntary, where -- according to the principle of double effect -- this transfer of funds is an unavoidable evil consequence of an otherwise good and worthwhile action.

Now, as to NR's charge that this is a "distraction" -- well, it depends on what your goal really is. If the NR's goal is more litigation, well that's foolish and they should know better. Litigation of such cases has some value, but it's not the main pursuit. Even if we could win every case we could present in every courtroom -- a highly dubious notion! -- we won't curb abortions there, but through legislation.

And it's rather stupid to argue that the way to pass legislation is not to try! But believe it or not, this is precisely what politicians, addle-brained activists, misguided lobbyists, and now the NR, advocates.

This is standard fare: you bring a controversial bill to the legislature (and everything that will make a significant difference will be controversial), and finding a politician to introduce it, sponsor it, say nice things about it, is one thing; start insisting that it come to a vote, and you will here advice remarkably similar to the NR's: not now, not expedient, wrong move, a distraction, etc.

The argument so-called insiders offer is, oh, you don't want to push for a vote till you have the votes! Ah, how do will you know you have them--till you have a vote? And how do you change the vote count -- until you (1) have a vote and (2) hold the politicians accountable for that vote at the next election?

Now, the NR said, oh, you can have the same effect by having a "resolution." Sorry, NR, but a non-binding, changes-nothing resolution ain't the same as a law that does change things. Know how I know? Because meaningless resolutions pass all the time when effective legislation on the same subject doesn't. Guess why? Because the other side gets a lot less upset about change-nothing resolutions. If you can guess why, you win the prize... Sorry the NR can't figure that out.

Year after year, an awful lot of good legislation is stymied when supposed allies say, "oh, that'll never pass" -- and it never gets a vote.

Thanks to the doughty Legislature of South Dakota, they can't say that there, anymore.


Jay Anderson said...


The biggest problem with losing in the courts is that the case will become just one more precedent for the notion that abortion is the law of the land.

Every time Roe is upheld as the law of the land, it takes another step toward becoming the "super-duper-precedent" that Arlen Specter wishes it to be.

The second problem with the legislation is that it now puts the U.S. Senate and all the lefty interest groups on notice that there is a law out there challenging Roe. That means it will be made all the more difficult to get a possible 5th anti-Roe Justice confirmed.

Lawyers worry about tactics because they want to win. I want abortion gone yesterday. The only way that happens is not by noble gestures like the SD law, but by getting the right judges confirmed and winning the right case in front of them.

Father Martin Fox said...


Thanks for your comments.

I try to say these things nicely, but I disagree 100%.

The problem of "super-duper precedent isn't the cases; it's the quality of the jurisprudence represented in the justices of the Supreme Court.

Meaning: if we get enough good justices, it doesn't matter; if we don't; it doesn't matter. Either way, it doesn't matter.

Of course, it would be nice if the U.S. Supreme Court were to overturn Roe, something I work for; but hoping for it being overturned is a slender reed on which to lean. (It's not even necessary, but more about that later.)

As to your "second problem," with all respect, no member of the Senate, and no lefty interest group, needed any help from the South Dakota legislature to be concerned about Roe. If any member of the Supreme Court, who voted to uphold Roe, retired, it was going to be "armageddon"; what, is it going to be double-super armageddon now? What's the significance of that upgrade? I don't see any. In short, they were gonna go beserko anyway; you know that.

In this fight, there is no "element of surprise"; there's no way we could ever overturn Roe, without the other side seeing it coming. We can't "sneak up on them."

But while you talk about mobilizing the other side, don't forget, we mobilize our side too; and I am convinced our side is more significant, politically.

Finally, let me point out why we don't need to worry about the Supreme Court. We can overturn Roe legislatively -- and I don't mean by a constitutional amendment. Here's how . . .

Roe is essentially premised on the 14th Amendment, and who is, or is not, a "person"; the Court said in Roe that, since it cannot determine whether an unborn child is a person, it came down on the side of the woman's "privacy" right.

However -- and here is the key -- Roe said that were the "personhood" of the fetus established, then this argument would "collapse."

So, the natural question to ask is how is this done? Again, the Roe decision addressed this. Justice Blackmun's decision said that the Court could not do this. And -- this is very important -- the Court did not say that the Constitution excluded the personhood of the unborn child. So it's an open question, which someone else must answer?

The only other is Congress; and that's what the 14th Amendment says, in Article 5: "The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article."

This is what the Life at Conception Act (H.R. 552) would do: declare unborn children persons, under the 14th Amendment, from the moment of conception.

Now, I have no idea whether we will enact it, but the National Pro Life Alliance, with which I work, has been very successful in mobilizing more prolifers around this legislation, and in increasing the number of cosponsors for this legislation in Congress. So it's worth pursuing.

And, I have no idea which will happen first; enacting this legislation or the Supreme Court consigning Roe to the dustbin of history. But I think it would be highly dubious to place all ones hopes on only one avenue of attack; and to subordinate one to the other.

You may think I've gone somewhat far afield from the specific legislation in South Dakota. But what we need to do is elect more prolife legislatures; and by "prolife," I mean 100% rock-solid. The essential value of what the legislature of South Dakota did is to identify the good guys from the bad guys with crystal clarity, and help elect more heroes.

It gives us many more candidates available to run for Congress from South Dakota. The more other states have such clarifying record votes at the state level, it spreads the goodness, and helps us have the majority we need in Congress.

Finally, I must point out, to clarify your final point, that the Supreme Court cannot make abortion "gone." It cannot prohibit abortion; only legislators do that. So even after getting the Court we want, we must have the legislators we want. And to do that, you need the sort of clarifying votes--followed by clarifying election results--such as I described above.

And that's why we need states to do as South Dakota did and why I bless that legislature's action.

Fidei Defensor said...

Father I agree with you on this one and have been posting a bit about it.

Every social change the left forced on us came at times that most would call premature. Furthmore even if the law is struck down this will definantly encourage pro-life people to live in south dakota, and pro-choice people to never go there or leave.

Jay Anderson said...


For what it's worth, I don't think we're 100% in disagreement. In fact, I can't find much with which I disagree in your response - maybe a little disagreement over tactics.


Hey, FD, thanks for the backup on this one! NOT! See if I link to your excellent blog anymore.


Darwin said...

I hadn't heard about this legislation before. Clearly I need to go read more about it.

So given the language in Roe, would there be opportunity for this to be taken to court, or would there still be an opening (whether in the original decision or in the subsequent restatements) for over-ruling the Life At Conception Act if passed?

Father Martin Fox said...


My concern was that, in disagreeing, I was not disagreeable.

Mrs. Darwin:

It is certainly possible that the Life at Conception Act would be voided by the Supreme Court. After all, it is abundantly clear that nearly any pretext will do, if it garners five votes.

As I am no expert in constitutional law, I won't pretend to provide commentary on all the ways that might happen.

But I hinted at one way it might: the Supreme Court -- given it's execrable tendency simply to posit law -- could declare that the 14th Amendment positively, and definitively, excludes the unborn as persons; and hence, Congress could not, therefore, extend personhood to the unborn. That would be one way the Supreme Court could overturn this legislation.

But doing that would mean going further than Roe: Roe leaves that question open. Given the vast elasticity of the legal "reasoning" in Roe, Blackmun, who wrote that damnable ruling, could very easily have closed this door. And yet he did not. That fact is significant.

Actually reading the text of the 14th Amendment, and what it says about "personhood," I conclude that it does not aim to be restrictive in who is a person under the law, when it refers to personhood.

The passage in question is aiming at who is a citizen and it pursuit of that, it refers to "all persons born or naturalized..." -- with the result that someone like Blackmun was prevented from denying personhood to someone born, but unborn? Ah, the 14th Amendment didn't hem him in there . . .

My point being, that I think the 14th Amendment doesn't prevent Congress from declaring unborn children persons, and the Roe majority did actually say, someone else has to do it, we can't/won't. The only other "someone else" has to be Congress. Hence this legislation.

If you don't mind, there is one other aspect of this worth noting.

Article 3, Section 2 of the Constitution explicitly says Congress can limit the Supreme Court's jurisdiction as a court of appeals (as opposed to an "original" court):

"In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."

That means Congress could say the Court lacks jurisdiction in, say, a question of personhood arising from the 14th Amendment.

Now, I don't know just when, or how, Congress has ever limited the Supreme Court's jurisdiction -- but there it is, in the Constitution. My point being, if we can pass the Life at Conception Act, we could also pass legislation limiting the Court's appellate jurisdiction in such a matter.

Now, could the Supreme Court strike down that law? Sure; in a sense, it can strike down whatever it likes! But doing that means starting a war over the text of the Constitution directly with Congress. Not a smart strategy for the Supreme Court.

Not since early in the Republic has that question been a live one: which of the branches has the right to say what the Constitution says? In this question of appellate jurisdiction, you'd have a war, and the Court would lose. The Congress appropriates; the Senate confirms; the Congress can impeach. The Judiciary is the weakest branch, if the others stand up to it.

This is all a very long way of saying that while the Supreme Court could strike down the Life at Conception Act, there are very good reasons I think they wouldn't.

Father Martin Fox said...

Mrs. Darwin:

Oh, by the way, if you look on my main page, you'll find a link to the National Pro-Life Alliance; go there to read about the Life at Conception Act.

You'll find more by looking at the newsletters than by going to the topical link, since those are updated less frequently.