October 4, 2005

Bush and abortion.

Ms. Magazine reports on Bush's press conference today:
A reporter asked, "You’ve taken the time to express that you know her heart, her character. You’ve emphasized your friendship. So it seems reasonable that over the course of the years you’ve known her perhaps you have discussed the issue of abortion. Have you ever discussed with Harriet Miers abortion? Or have you gleaned from her comments her views on that subject?”

Bush kept avoiding the question, saying that he has no “litmus test” for judicial nominees, but the reporter reiterated the fact that Miers is someone Bush has known for a long time. “Have you never discussed abortion with her?” the report asked incredulously. “In your friendship with her…?” “Not to my recollection have I ever sat down with her,” said Bush. “What I have done is understand the type of person she is and the type of judge she will be.”

Bush later would not answer a reporter’s question about whether he would like to see Roe v. Wade overturned, but did emphasize that he has “made my position clear in the course of my campaigns … and I’m a pro-life president.”

Personally, I think Bush does not want to see Roe overturned. I think he's a lot more pragmatic than the hard core pro-lifers who have vested their hopes in him. I think there are a few women very close to him -- perhaps four close family members -- who talk about the importance of letting women govern the insides of their own bodies, and that there are some smart political strategists -- including at least one genius -- who see quite clearly the devastating harm that would befall the Republican Party if the Court overturned Roe.


Troy said...

I don't think it would be devastating at all. Republicans might actually get some credit for showing some backbone. All of the states (even Utah) would legalize abortion almost immediately and there would be some reasonable restrictions that reflect the voters of each state. What a concept that would be.

What. overturning Roe is going to stir up a hornet's nest? Good. Let the left bitch and moan for awhile. They can actually put some faith in the democratic process for a change.

No one has absolute control over their bodies. We don't have any real debate on how far that freedom extends because we can barely legislate it without some judge somewhere overturning whatever legislation comes down.

I think overturning Roe would be great. I don't know, it might be a disaster, but I'd like to turn that rock over and see what's underneath.I'd at least like to have a more direct say in the society in which I live.

Troy said...

I don't want to go to Congress. I live in California. They probably already have abortion statutes written just in case of Roe -- In case of overrule Break Glass. But at least I could petition my state rep and have a shot.

I could write a letter o Ruth Ginsburg and tell her she's wrong and she'd "file 13" my letter with nary a second thought. I want Bush to think about abortion. The second we stop thinking about life (the old, young, infirm, the "other") we are in deep trouble.

Eddie.. I can't go to a legislature to fight that's the point. Read Scalia's dissent in Casey v. PPP

Matt said...

The thing with Roe is that IMHO, the Republican party is careening toward a damned if you do/damned if you don't situation:

If Roe is overruled, the GOP faces problems both from pro-choice Republicans, who may bolt, and from pro-lifers who see the issue as off the table and pick something else to obsess about.

If Roe is not overruled, then the social right is going to get increasingly upset about how "their party" has failed to deliver the goods to them and seem likely either to bolt to third-party land (a Pat Buchanan/Roy Moore-type third party) or to take over the party and have the GOP nominate "one of us!" Either would have significant adverse consequences for the GOP.

P_J said...

Personally, I think Bush does not want to see Roe overturned.

I think that's pretty obvious from his (in)action. Despite all the dire warnings from Planned Parenthood and NARAL, he's not exactly moving forward in any way that would lead people to think he wants to overturn Roe.

Not necessarily speaking for myself, I think there's a 3rd option for social conservatives:

Many will become discouraged at the perceived lack of progress and simply stay at home.

Jimmy said...

I’m a Democrat and I would love to see Roe overturned. I’m sort of in the outs with my party because I don’t see any right to an abortion in the Constitution. I don’t think abortion falls even falls into the Right to Privacy if that right existed. Also I think overturning Roe would wreck the Republican Party. I’ve met countless young Republican women who are pro-choice. Whenever I ask them how they feel about the GOP’s official stance on the issue they respond that Roe would never be overturned. The Democrats absolutist stance on Roe reassures so many moderates that they can safely vote Republican without seeing abortion become illegal. Let ROE be overturned. Let’s see the Republican party tear apart as those who advocate extending Equal Protection clause protections to embryos battle those who support abortion rights.

Matt said...

Yeah, I left the "stay home" option out, but that's also realistic.

Unknown said...

Why would Bush care about the political ramifications? He doesn't have to run for re-election. I think he's more concerned with what God would think.

I expect Roe to be overturned once Stevens dies or retires and Bush names his replacement.

P_J said...

I agree that overturning Roe would likely have severe, disastrous consequences for the Republican party, but perhaps only in the short term.

I'm fascinated that within the last century, we had the culmination of a complex social movement to outlaw alcohol. Obviously the movement had enough public support to change the Constitution. But the results were so unpopular that it lasted only 14 years.

My point isn't that there is widespread support to outlaw abortion (I don't think there is). But wouldn't it be possible to take it out of the courts and put it back in the legislatures? At least then we'd be able to have substantive, practical debates about next steps absent Roe.

Peter Hoh said...

I remember hearing Clarence Thomas tell the Senate judiciary committee that he had never thought about the abortion issue. Uh-huh.

P_J said...


I think in 1988 she also donated money to Al Gore! The more we know, the less we understand...

tyreea said...

Roe v Wade needs to be overturned if only for the "right to privacy" part. Able Danger, the "20th hijacker's" laptop and illegal immigration are examples of some of the problems we have gotten ourselves into by thinking that the "right to privacy" trumps "the Right to Life, Liberty and Pursuit of Happiness". It won't be easy. There is no way the issue of abortion is going to be settled until the people feel their voice has been heard. We are not ruled by judges. If Roe is overturned abortion on demand will still be to available in most states unless there is a minor involved. What we will gain is the abiliy to ask terrorists if they are in the country illegally.

Condoleesa said...

I think a lot of conservatives pay lip service to overturning Roe vs. Wade because they think it won't happen. I am guessing there are a lot of conservative women out there with a little secret and they might be a little uncomfortable with the situation if they thought it would really be overturned.

Incidently, I am Christian and pro-abortion. I think women should have the right to chose. I don't think you should legislate morality. Something about separating Church and State.

XWL said...

My only reaction to that article is, Ms. Magazine still exists?!? (what's its point for continued existence?)

Simon said...

I second the astonishment at the conflation of the overturning of Roe and the criminalization of abortion. Roe was wrongly decided and should be overturned; of that much, there is little question. If it, and its progeny, are overruled, than the issue will return to precisely where the constituion leaves it, viz., the states. Where it will either be legalized, regulated or criminalized in accordance with the individual states' laws and constituions through the democratic process.

Why this should be a matter of great consternation to pro-choicers is a matter of great surprise to me. Whither the confident assertion that vast majorities are in fact pro-choice; that the forces of life arrayed against abortion are but a tiny minority?

Unless one is willing to concede that opposition to restricting abortion may not be as complete or as widespread as is suggested, I see no reason why one would be concerned with the return of the issue to the democratic stage.

Simon said...

I think overturning Roe would wreck the Republican Party.

Care to help us test that theory at the next election?

P_J said...


Yes, you're right. I had forgotten that Gore was pro-life until later in his career - probably about the time he started becoming more of a national figure. I wasn't really making a critical comment about Miers' donation, just an observation that there are donations and there are donations, and sometimes a check is just a check (but I would guess few people donate to pro-life groups who aren't true believers).

Thanks for your kind comment earlier, BTW. I haven't found the time to write a blog. Maybe if I spent less time here ... but I don't want to do that. I really enjoy the parties Ann throws and the people she attracts.

XWL - Lol!

P_J said...

I have to run the kids to soccer games. See you all later.

BTW, there's still a lively abortion discussion a few threads down...

Becca said...

If the President really wanted Roe v Wade overturned, it is certainly not one of his top prioroties. And even though I am moderately pro-life ... it shouldn't be his top priority. However, Bush may be slowly setting that scenario up. We'll have to wait and see.

amba said...

Re: what John says about some states banning abortion post-Roe: I've thought about this, and have thought about how it would polarize the country even more into red and blue states or regions. In fact, different regions would almost become different countries. The Bible Belt states would tend deeply conservative and theocratic and blue types would flee to New England or Northern California. Urbane cities, like Atlanta, surrounded by seas of believers in creationism would be as isolated as West Berlin during the Cold War.

Ann Althouse said...

Amba, others: Why are you assuming Congress wouldn't pass a law to regulate everyone? The question is would Congress want to provide a statutory right to abortion or make abortion a federal crime? I suppose there's some chance the Court would find the law unconstitutional (one more than the other?). Try to form your opinion about Congress's power before you find out which side would have the votes to pass a national law.

amba said...

Pastor Jeff,

Wasn't Al Gore a conservative, pro-life Southern Democrat back then?

Simon said...

Ann -
Why are you assuming Congress wouldn't pass a law to regulate everyone? The question is would Congress want to provide a statutory right to abortion or make abortion a federal crime?

In my view, there is no more a power for Congress to pass such a law than there is a right in the Constitution to an abortion. Originalism cuts both ways; as much as I would love for there to be some clause on which to peg such a Congressional power - and believe me, I've been looking - I can't find any that survives even a cursorary originalist line of inquiry.

This would be another good litmus test for "my sort of nominee", and the difference between merely a conservative judge and an originalist: would they not only vote to overturn Roe, but to void a Federal law on abortion?

Ann Althouse said...

Simon: It's not your view that will matter, but the Justice's. Look at the recent medical marijuana case to see the scope of the Commerce Power. If you want the Court to draw the line on that power, you might find even Scalia on the other side.

amba said...
This comment has been removed by a blog administrator.
amba said...

If Congress ever passed a law regulating abortion, I'm guessing that the only kind that could make it through committees and past a filibuster by one side or the other would be one that reflected the consensus of the country: relatively unrestricted first trimester abortion (with parental notification and possibly mandatory counseling and/or 24-hour waiting period) and later abortions outlawed with exceptions (life, health, rape, incest). If passed, such a law would override the preferences of both the reddest and the bluest states. Ann, absent Roe, on what grounds would it be constitutional for Congress to pass such a law?

Ann Althouse said...

Amba: Commerce clause.

Pat Patterson said...

Late to comment , however I agree with Troy, if Roe v. Wade is overturned or limited to its original limitations then Utah would ban abortion. I'm not sure how many other states would. In the short run the Republicans would be hurt, seen as pro-life, but over a period of time when people see that the streets are not littered with bloody coat-hangers, then there might be stasis again. Also California was one of the first, prior to 1972, where the legislature approved of therapeutic abortions.

Simon said...

Justice Scalia is on record as agreeing with my opinion on the powers (or, more accurately, absence thereof) of Congress to regulate abortion.

Thus, my difficulty with Roe v. Wade is a legal rather than a moral one. I do not believe – and no one believed for 200 years – that the Constitution contains a right to abortion. And if a state were to permit abortion on demand, I would and could in good conscience vote against an attempt to invalidate that law, for the same reason that I vote against invalidation of laws that contradict Roe v. Wade; namely, simply because the Constitution gives the federal government and, hence, me no power over the matter.
(See Pew Center '02, archived at Ninoville).

As for the commerce clause supporting the kind of law that Amba posited, I think it would be perfectly lovely if I believed in the living constitution - but I do not. I'm an originalist, and just because I'm pro-life doesn't mean I can arbitrarily redefine the scope of the commerce clause. I think such a law would be preposterously outside the bounds of the commerce clause, and prima facie ultra vires. If I were a member of Congress, I would probably vote for it, out of sheer symbolism (another reason for the court not to defer to Congress), but if I were on the Supreme Court, I would vote to strike down such a law in the same breath as voting to overturn Roe.

And funnily enough, neither action would be an activist Judgement. ;)

P_J said...


I don't know the ins and outs of ConLaw (but I visit someone's site who does) but I assume Congress passed a federal law to regulate a federal "right." If it weren't a federal issue, then Congress couldn't make laws affecting powers that belong to the states.

The other argument, however, is that this touches on basic inalienable rights guaranteed in the Declaration and Constitution. Congress has passed civil rights legislation in the past.

Simon said...

Simon and others who are both pro-life and believe abortion should be left to the states:
do you then think that Congress lacked authority to pass the Partial Birth Abortion Ban? If no, how would you reconcile that federal law with your "leave abortion to the states" stance?

I don't think Congress had the authority to pass the Partial Birth Abortion Ban, no. I wish it did. I just don't think it does.

P_J said...


I agree that a totally states-right position makes Partial Birth Abortion Ban unconstitutional and inconsistent. But if Roe is still the law of the land, isn't this a federal issue? Or was the ban struck down by Casey on the mother's health argument? I don't remember.

To use Scalia's version of original intent: Would a reasonable person at the time of the 14th amendment have understood it to have anything to say about abortion or whether the unborn have rights? It seems the terminology is about rights for Americans as opposed to foreigners, not born versus unborn.

What about the Declaration? Our nation was founded on an appeal to inalienable rights. What happens when the judiciary makes a ruling that seems to undermine an inalienable right?

While I could see a right to privacy in the unenumerated rights of the 14th, that's not at all the same as the right to destroy human life in private.

But I concede your larger point. It can't be both federal and state-level.

Simon said...

The former has more textual support in the Constitution, which reserves unenumerated rights to citizens *born* in the U.S. from government interference

I would say that, almost by definition, the Constitution doesn't reserve unenumerated rights to anybody, born or unborn. It reserves certain rights - specific privacy rights, which would seem to me to deny a general privacy right, being some of them - to citizens. But note that the 14th amendment has some provisions that relate to all citizens and some which relate to all PERSONS. Determining what the difference between those two propositions was generally understood at the time of ratification is the key to understanding the scope of applying the 14th amendment to abortion.

[F]or the umpteenth time, the overturning of Roe would not mean the end of abortion. The vast majority of states would remain pro-choice.

As noted above, I disagree. Let's test the theory.

Simon said...

What about the Declaration? Our nation was founded on an appeal to inalienable rights. What happens when the judiciary makes a ruling that seems to undermine an inalienable right?

IMHO, when that right is protected by a constitutional provision, that ruling is wrong. When that ruling is not protected by a constitutional provision, then the courts must defer.

The problem is fairly simple: once you get into the whole business of unenumerated rights, you have to get into the question of who decides which rights are constitutionally protected? You have to get into judges weighing substantive questions like, is the right to life more important than the right to an abortion, even assuming either exist?

Until there is a genuinely consistent and convincing theory put forth by the proponents of unenumerated rights as to a) where in the constituion they live (I have previously argued that the ninth, tenth and fourteenth amendments are out of the running) and b) what, other than the imagination and moral procliviteies of a given judge, are their limits, unenumerated rights are a dead letter.

Eli Blake said...

Personally, I think Bush does not want to see Roe overturned. I think he's a lot more pragmatic than the hard core pro-lifers who have vested their hopes in him

So, he used them to get elected, but now has no intention of paying them back.

Same thing you are saying, but phrased differently.

P_J said...


Good comments. I generally agree with your analysis. We are dealing with an issue that I don't think the founders ever considered.

Are you saying that if there is a right to privacy it must entail a right to abortion since there is no constitutional basis for recognizing any rights of the unborn?

Simon said...

I'm just curious to see how Scalia and Thomas would uphold this federal abortion ban without applying a results-oriented analysis inconsistent with their previous approach to federalism and textualism... though they will surely do so.

As noted supra, Scalia has said in as many words that he will not do so. Of course, he might change his mind, but I rather doubt it.

Matt said...

An even more interesting question--many states' abortion bans pre-dating Roe are still on the books, having never been formally appealed. In theory, could, moments after such a decision was issued, law enforcement officers immediately arrest and prosecute people under these "revived" laws?