Convictions : Roe

Endorsing Obama

Doug Kmiec — Sun, 23 Mar 2008 13:18:00 GMT

Today I endorse Barack Obama for president of the United States. I believe him to be a person of integrity, intelligence, and genuine good will. I take him at his word that he wants to move the nation beyond its religious and racial divides and that he wants to return the United States to that company of nations committed to human rights. I do not know if his earlier life experience is sufficient for the challenges of the presidency that lie ahead. I doubt we know this about any of the men or women we might select. It likely depends upon the serendipity of the events that cannot be foreseen. I do have confidence that the senator will cast his net widely in search of men and women of diverse, open-minded views and of superior intellectual qualities to assist him in the wide range of responsibilities that he must superintend.

This endorsement may be of little note or consequence, except perhaps that it comes from an unlikely source: namely, a former constitutional legal counsel to two Republican presidents. The endorsement will likely supply no strategic advantage equivalent to that represented by the very helpful accolades the senator has received from many of high stature and accomplishment, including most recently, from Gov. Bill Richardson. Nevertheless, it is important to be said publicly in a public forum in order that it be understood. It is not arrived at without careful thought and some difficulty.

As a Republican, I strongly wish to preserve traditional marriage not as a suspicion or denigration of my homosexual friends but as recognition of the significance of the procreative family as a building block of society. As a Republican and as a Catholic, I believe life begins at conception, and it is important for every life to be given sustenance and encouragement. As a Republican, I strongly believe that the Supreme Court of the United States must be fully dedicated to the rule of law and to the employ of a consistent method of interpretation that keeps the court within its limited judicial role. As a Republican, I believe problems are best resolved closest to their source and that we should never arrogate to a higher level of government that which can be more effectively and efficiently resolved below. As a Republican and a constitutional lawyer, I believe religious freedom does not mean religious separation or mindless exclusion from the public square.

In various ways, Sen. Barack Obama and I may disagree on aspects of these important fundamentals, but I am convinced, based upon his public pronouncements and his personal writing, that on each of these questions he is not closed to understanding opposing points of view and, as best as it is humanly possible, he will respect and accommodate them.

No doubt some of my friends will see this as a matter of party or intellectual treachery. I regret that, and I respect their disagreement. But they will readily agree that as Republicans, we are first Americans. As Americans, we must voice our concerns for the well-being of our nation without partisanship when decisions that have been made endanger the body politic. Our president has involved our nation in a military engagement without sufficient justification or a clear objective. In so doing, he has incurred both tragic loss of life and extraordinary debt jeopardizing the economy and the well-being of the average American citizen. In pursuit of these fatally flawed purposes, the office of the presidency, which it was once my privilege to defend in public office formally, has been distorted beyond its constitutional assignment. Today, I do no more than raise the defense of that important office anew, but as private citizen.

Sept. 11 and the radical Islamic ideology that it represents is a continuing threat to our safety, and the next president must have the honesty to recognize that it, as author Paul Berman has written, "draws on totalitarian inspirations from 20th-century Europe and with its double roots, religious and modern, perversely intertwined. ... wields a lot more power, intellectually speaking, then naïve observers might suppose." Sen. Obama needs to address this extremist movement with the same clarity and honesty with which he has addressed the topic of race in America. Effective criticism of the incumbent for diverting us from this task is a good start, but it is incomplete without a forthright outline of a commitment to undertake, with international partners, the formation of a worldwide entity that will track, detain, prosecute, convict, punish, and thereby stem radical Islam's threat to civil order. I await Sen. Obama's more extended thinking upon this vital subject as he accepts the nomination of his party and engages Sen. McCain in the general campaign discussion to come.

Reducing Abortions

Dawn Johnsen — Sat, 22 Mar 2008 22:45:00 GMT

Eric, you changed the topic on me and perhaps misunderstood. The conversation was about the politics of abortion and Republican coalition--no one is questioning the sincerity of belief of many who would like to see Roe overruled and abortion banned.

Do you doubt that the legislation I described would likely increase the total number of abortions? My point was that the kind of legislative initiatives that come out of the "Republican coalition" you were discussing does not actually accomplish a reduction in abortions. (And that the primary prochoice organizations do work hard toward that goal.) That may also well reveal that some (not all) such political forces are more interested in objectives other than reducing the number of abortions. Among them may be controlling the nature and understanding of motherhood and diminishing women's equality and sexual freedom (and even where those are not objectives, they may provide strong influences). For the many who sincerely would like to reduce the number of abortions, that desire provides the basis for education about the true effects of the legislation and the possibility for instead forging common ground policies that promote pregnancy prevention and healthy childbearing.

Roe and Still More Hypocrisy

Eric Posner — Sat, 22 Mar 2008 17:09:00 GMT

Dawn, you've hit the nail on the head. What hypocrites! To think that we would believe that they are against abortion just because they are trying to shut down abortion clinics. I hadn't realized that their nefarious scheme is to increase the number of abortions by reducing the availability of contraceptives! How could I have been so easily fooled?

Jack, I'm afraid you'll need to revise your theory that Republican leaders surreptitiously want to preserve Roe so that they can maintain a coalition that will dissolve if Roe is overturned. In light of Dawn's argument, you will need to claim that Republican leaders pretend they want to overturn Roe, on behalf of a constituency that pretends that it wants to reduce the number of abortions. Politics can be so confusing!

More on Roe and the Republican Coalition

Dawn Johnsen — Sat, 22 Mar 2008 05:19:00 GMT

[Dawn Johnsen] With apologies for the more-than-24-hour response time - an eternity for a blog, I know - I want to resurrect Eric's statement: "Members of the Republican coalition are not so much concerned about Roe as about reducing the number of abortions." Implausible, I think, on its face. But for any for whom it may be true, let me explain to them the error of their ways, with an example from here in Indiana.

Anti-choice legislators introduced two bills in the Indiana legislature a couple of sessions ago: one an outright criminal ban on abortion and another a "TRAP" law. "TRAP" or "targeted regulation of abortion providers" laws are designed to sound non-threatening and trick people into thinking they are about legitimate health concerns. But they actually seek to shut down facilities that perform abortions: by singling them out for medically unnecessary, extremely expensive regulations, such as building specifications that mandate hallway widths and room sizes that mirror hospitals.

The Indiana TRAP law would have closed every abortion clinic in the state, and kept them closed unless and until they could afford expensive renovations or relocations (leaving hospitals the only lawful possibility). The criminal ban went nowhere, but the legislature came extremely close to enacting the TRAP law and shutting down every one of Indiana's seven abortion clinics for plainly no legitimate purpose. Including our Planned Parenthood clinic here in Bloomington.

A few stubborn facts: Last year Planned Parenthood of Indiana dispensed nearly half a million units of contraceptives, doing more than any other organization to reduce the abortion rate in Indiana. I repeat, the TRAP law would have debilitated for no legitimate purpose the organization doing more than any other to reduce unwanted pregnancies in Indiana. Most of its patients have limited other options, for they live at or below the poverty level. Nationally, 81 percent of Planned Parenthood's patients receive services to prevent unintended pregnancy. Many others receive screening for cancer, HIV and sexually transmitted diseases. And three percent of its services go to women to make real Roe's increasingly hollow promise, that whether to have an abortion is a decision for the woman and not for politicians to impose on her.

The way to reduce the number of abortions is no secret. It's by making available contraception and comprehensive sexuality education. And more than that, by enacting policies that support healthy pregnancies and healthy families. How about universal health care, or at least an expansion of the CHIP program for kids? Where is that Republican coalition?

More on Heller and Roe

Eric Posner — Thu, 20 Mar 2008 21:44:00 GMT

Suppose that a number of people form a group in order to obtain some goal, X. They appoint some of their members to be the leaders of the group. These leaders quickly realize that if goal X is actually achieved, the group will disband, and the leaders of the group will be out of a job. At the same time, if they refuse to work toward X, they will be fired. Therefore, the leaders of the group take actions that lead the group progressively toward X but make sure that X is never achieved -- a political version of Zeno's paradox.

Does this story sound plausible? Economists will recognize it as an agency-cost theory: the agent (the leader or leaders) and the principals (the members) have divergent interests. Both want to achieve X but the agent also wants to keep his job. If group members cannot adequately monitor his actions, the agent will take steps that best satisfy both his ends, which means working toward X but not actually achieving it. Because the group cannot distinguish between honestly working toward X and deceitfully taking baby steps, they cannot discipline the leader for his bad behavior.

The story underlies Jack's claim that the leaders of the Republican Party don't really want the Supreme Court to overturn Roe, because once that happens, they will be out of the job. They have been working toward X for 35 years now, but they will make sure never to achieve the goal, apparently by ensuring that people willing to overturn Roe are not appointed to the Supreme Court. David tries to refute this argument by adopting its logic to gun rights. The Republican Party also seeks to secure guns rights. If it succeeds, then it will fall apart. Yet the Supreme Court justices seem inclined to deliver success. This must mean that Jack's logic is faulty, the leaders of the Republican Party actually do want to overturn Roe, and hence Roe will be overturned. Jack responds by denying David's implicit premise that establishing gun rights serves the Republican coalition in the same way that overturning Roe does.

Jack's theory can be attacked more directly. The agency theory assumes an information asymmetry between leaders and members: the members cannot monitor the leaders' behavior. In many settings, such an assumption is reasonable, but here it is not. It is perfectly clear what the Republican Party leadership is, and is not, doing to undermine Roe. That they have not put all their resources into this task is consistent with an innocent explanation: they have to please all members of their coalition and these people care about things other than (or in addition to) overturning Roe. If Bush had put all his political capital (when he had political capital) into appointing clearly anti-Roe jurists to the Supreme Court, he would not have been able to use it to obtain other things that he and other Republicans care about (tax reductions, etc.).

The theory also makes too much of the difference between overturning Roe and chipping away at it. Members of the Republican coalition are not so much concerned about Roe as about reducing the number of abortions. They also care about other things. So as the Roe precedent becomes weaker, it will become easier to restrict abortion, and therefore people opposed to abortion will feel decreasingly concerned about that issue and correspondingly more concerned about the other issues that they care about. If Jack's theory is right, then the leaders of the Republican Party can't merely preserve Roe as a hollowed out shell; they must ensure that, in fact, little progress is made in restricting abortion as a practical matter. In other words, they maintain their leadership by accomplishing very little for their followers, all the while arguing that they are doing their best. Not a plausible recipe for political success.