Where are Republicans now on the nation’s most pressing issues?
Specifically, where are they on the violent abortion of babies?
Since Tuesday politicians and pundits have been chewing over results in the off-year elections held mostly in the northeast, Midwest and south. Democrats are pleased and Republicans are not. Not mentioned by most commentators was the fact that local elections tend to be focused on local issues, a reason for Democrats to hold their enthusiasm and Republican to regain theirs. The most startling result was the success of efforts to expand abortion and the failure of efforts to restrain it. But more about that below.
Incumbents in off-year election years tend to do well, and this year was no exception, as Democrat governors in Rhode Island and Kentucky and a Republican governor in Mississippi were re-elected, and Democrats kept control of the State Senate and gained control of the General Assembly in the blue state of Virgina. Otherwise, it was mostly ballot measures such as initiatives and constitutional amendments, particularly in Ohio.
According to the Ohio Capitol Journal, “In unofficial results that still need to be certified and have provisional ballots counted, the amendment passed with 56.62%, or nearly 2.2 million voters out of more than 3.8 million who had cast ballots in the race.” This is remarkable as Ohio is a strong Republican state. But, for reasons I will provide, that fact was irrelevant in this case, unless it is true, as Kristan Hawkins of Students for Life charged, that the party was either not enthusiastic about or was running away from abortion.
Labeled Ohio Issue I, it is printed in full here:
Article I, Section 22. The Right to Reproductive Freedom with Protections for Health and Safety
A. Every individual has a right to make and carry out one’s own reproductive decisions, including but not limited to decisions on: contraception; fertility treatment; continuing one’s own pregnancy; miscarriage care; and abortion.
B. The State shall not, directly or indirectly, burden, penalize, prohibit, interfere with, or discriminate against either: An individual's voluntary exercise of this right or; A person or entity that assists an individual exercising this right, unless the State demonstrates that it is using the least restrictive means to advance the individual's health in accordance with widely accepted and evidence-based standards of care.
However, abortion may be prohibited after fetal viability. But in no case may such an abortion be prohibited if in the professional judgment of the pregnant patient’s treating physician it is necessary to protect the pregnant patient’s life or health.
C. As used in this Section: “Fetal viability” means “the point in a pregnancy when, in the professional judgment of the pregnant patient's treating physician, the fetus has a significant likelihood of survival outside the uterus with reasonable measures. This is determined on a case-by-case basis.”
“State” includes any governmental entity and any political subdivision.
D. This Section is self-executing.
First, I will analyze the wording of the “reproductive freedom” measure and then relate its passage to the United States Supreme Court decision in Dobbs v. Jackson Women’s Health Organization. I will give the crafters of the Ohio measure for, well, craftiness, as they brought in all manner of things related to reproduction but not all that related to violent abortion. (No child in the womb dies without violence—be it by means of chemicals or knives.)
Section A mentions abortion only at the very end, which is remarkable since the clear, unambiguous object of the measure was to legalize abortion. Killing did not become part of “reproductive decisions” at the national level until Roe v. Wade in 1973, the infamous Supreme Court decision reversed last year. That is, ironically, highly illuminating, as it constitutes an attempt—a successful one—to keep the primary aim obscure. These are vital decisions here, indeed, and certainly they are critical to human life, but this is amajor attempt to make the normal, predictable events of a woman’s life central to public policy. Only the passion for violent abortion could do that.
The first paragraph of Section B regarding the state’s powers over “this freedom” does not even so much as mention abortion, burying it until the second paragraph under the terms “health” and “standards of care.” By this same sleight of hand, we could lump murder with all the decisions we make in our lives. Ergo: Who says A, must say B.
The second paragraph’s purported attempt to forbid abortion after fetal viability falls apart immediately under the guise of protecting the mother’s life, which no one disputes, and her health, which doubtless will be defined as broadly as it was in Roe v. Wade, viz. to include emotional as well as physical health, and even the anxiety over having to make a sacrifice, such as of a career or education, rather than killing the baby. Bet on it.
In Section C we see the resurfacing of the Roe v. Wade language that puts the decision on this matter within “the professional judgment of the pregnant patient's treating physician,” apparently leaving the women’s judgment out of the matter as in Roe v Wade. The doctor, who was a vested interest in being paid for an abortion, will decide!
I am not surprised this cleverly worded measure passed, for two reasons. Rights have a sacred place in the American scheme of things, and any action that can be passed off as such has a good change of gaining public support. By burying the ugliness of violent abortion as accomplished here, it was a winner. And off-year elections produce lower turnout than even-numbered ones, so Republicans did not vote as heavily as Democrats whose leaders have a vested interest in making abortion central to their political appeal, as they are flopping, and flopping hard, with inflation, crime, border failure and now weakness in foreign policy and defense.
But I agree with Hawkins that the GOP should have risen to the occasion.
Now to the U.S. Supreme Court’s decision on abortion last year. Justice Samuel Alito went to great lengths to demonstrate that the Constitution confers no right to unrestricted abortions, as even supporters of Roe v. Wade admitted. Seven justices saw in the Fourteenth Amendment an implied right to abortion in the due process of law clause, a “substantive” right, that no previous Court had ever found. Alito’s critique was encouraging but not enough. He gave no guidance to the American people concerning what governs the abortion issue, which, to his credit, Justice Alioto rightly described as a “moral issue,” but only at the end of his opinion.
Alito should have made clear that the Constitution is pro-life. After all, it authorizes Congress and the President explicitly to defend the lives of the citizens against rebellion or invasion and to wage war against our enemies. The federal courts are specifically commanded to provide due process of law to defend “life, liberty and property” against arbitrary infringement. Had the Court followed the common law which protected pre-born human life, as well as the Declaration of Independence, which puts the rights to “life, liberty and the pursuit of happiness” on the foundation of “the laws of nature and of nature’s God,” the nation would have had the guidance it sorely needed. But it punted the issue to the states.
As Hawkins declared, the pro-life movement took 50 years to overturn Roe v. Wade. Now, because the Court left out what was most vital to its resolution last year, it may take us another 50 years to reverse Ohio’s and other states’ reinstatement of that horrible precedent.