The No-Choice President - The American Spectator | USA News and Politics
The No-Choice President
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Is gay marriage sinking the pro-abortion movement?

As G. Tracy Mehan reported here yesterday, the Gallup organization has found that 51% of Americans now identify themselves as “pro-life” with 42% identifying as “pro-choice.” This is the first time the pro-life side has gained the majority since Gallup began polling the question in 1995. Aside from the interesting quandary this presents to Republican “moderates” who have long insisted that the GOP would do better in elections if it abandoned the pro-life side of the issue (because it was thought to be a political loser with a presumed pro-choice majority, something Ronald Reagan the two Bushes actively disproved), the question is whether the struggle over gay marriage and even the Obama presidency itself is unintentionally driving these results.

Gay marriage, of course, is famously being fought out on a state-by-state level. Vermont, through a vote of its legislature and the overriding of a gubernatorial veto, has said yes. California, in a popular vote to amend the state’s constitution, has said no. Iowa adopted the liberal position of simply using the judiciary (the Iowa Supreme Court) to assert a brand new right miraculously discovered by liberal judges. As with California, this has launched an immediate move to get the gay marriage issue on the ballot, giving Iowa citizens the chance to vote on a constitutional amendment limiting marriage between one man and one woman.

The chance to vote on the issue, one suspects, would seem as fair to Iowans as it did to Californians.

And therein lies the increasing problem for the so-called “pro-choice” movement, even as it gathers behind the inevitable Obama pick for the Supreme Court of an abortion friendly nominee.

The hard political fact for abortion advocates is that in a society where words matter, the “pro-choice” movement is in reality what might be called the “no-choice” movement. Whatever else can be said about Roe v. Wade, the idea that a “woman’s right to choose” was freely chosen by Americans — as was true of every other basic right in the nation’s history — is fundamentally false. The American people have specifically been refused an opportunity to choose abortion policy. Instead, liberal activists chose to go through the courts. One suspects this is because abortion advocates fear an electoral result that in some fashion mirrors precisely the results Gallup has discovered — a majority opposed to the tenets of abortion as outlined in the judicial fiat that is Roe v. Wade.

The United States Constitution itself — the founding document that established the legal structure for the American government — was written by elected delegates to the Constitutional Convention. The final document was sent to the states — where state conventions composed of elected delegates ratified it, with nine states needed for approval. That occurred with the ratification by New Hampshire’s elected state convention on June 21, 1788. No judges were involved in the process.

So too with the Bill of Rights, the first ten amendments to the Constitution. Voters — through the election of their members to the First Congress — supported the writing of a Bill of Rights. A series of ten amendments outlining the basic rights of an American citizen were agreed upon by the Congress and submitted to the states where, once again, elected representatives supported the addition of these amendments to the Constitution. The rights we know today — to a free press, religion, free speech, a trial by jury, the right to bear arms, not to incriminate oneself– all (and more) were specifically approved by the American voter of the day. As time went on, other amendments — ending slavery, providing ex-slaves with the right to vote, giving women the right to vote, removing the right to drink (Prohibition) — and then specifically restoring the right to drink by ending Prohibition — were all voted upon by the American people.

Yet through all of this there came a move to bypass the “consent of the governed” by instead substituting the political views of judges for the voter when the question arose over the establishment of basic rights. Most notorious on this front was the Dred Scott decision by the Supreme Court in 1857. Chief Justice Roger Taney, a slave-owning Democrat, tried, in the words of former Judge Robert Bork, to “read into the Constitution the legality of slavery forever.” In part, Bork notes, Taney issued his ruling because he feared the “rising population” of the North — which is to say the elective ability to eliminate slavery. By setting the resolution of the social issue of slavery as a court decision, of course, there was a political explosion that helped ignite the Civil War.

Even before the end of the war, Americans resumed the electoral approach to controversial questions of rights. Republicans campaigned in 1864 on ending slavery — with a constitutional amendment that required a vote of the people. The Thirteenth Amendment was passed by Congress in 1865 (with only 14 Democrats in favor in the House, as Bruce Bartlett notes in his recent book Wrong on Race) and ratified by the accepted procedure of popular votes expressed through the election of state legislatures.

Now comes the Obama administration, presumably on the verge of nominating for the Supreme Court another descendant of the Roger Taney philosophy. Which is to say, yet another judge seeking to limit decisions on abortion rights to judges. No voter need apply.

Yet curiously, at the same time, Obama addressed the graduates of Notre Dame with an appeal about having a “fair mind” when dealing with the question of abortion. At the same time, in another area of his administration — antitrust law — Obama’s assistant attorney general Christine Varney has signaled her eagerness to overturn decades of Supreme Court precedent that establishes the limits of antitrust law. Which is to say, the Obama administration has opened any Supreme Court nominee to legitimate questions that if it’s OK to overturn Supreme Court precedent on antitrust law, why is there a problem overturning abortion law?

What does this mean for the next stage of the conservative fight on abortion?

It opens the door for a significant change in strategy. Expanding a strategy based on the sanctity of life — to one that also focuses on the simple fairness of the decision making process. If it’s OK for the people of Vermont to make gay marriage legal through a vote of their elected legislature — and it’s fair to allow California voters the right to amend their own constitution to ban gay marriage — why shouldn’t it be fair to let the same voters decide the fate of abortion policy in their states?

Not only is there no reason, the idea of applying the term “choice” to an appeal for overturning judge-made law has considerable political appeal. For one thing, it highlights the fact that opponents who masquerade under the “pro-choice” political banner are in fact, just as with the Taney Supreme Court in 1857 or gay marriage extremists in California, aggressively opposed to allowing voters a choice, in this case in making abortion policy. It highlights the reality that “pro-choice” activists are in fact “no-choice” activists, and the candidates they support are dedicated to keeping the American people from voting for whatever abortion rights policy they choose to support — or not support.

Letting the American people vote on abortion policy is not a new idea. Indeed, it has always been included in discussions about what would come after the overturning of Roe. Indeed, the major challenge to Roe came through an act of the Pennsylvania state legislature signed into law by pro-life Democrat Governor Robert Casey (Planned Parenthood v. Casey.) Yet since then the discussion has mostly been conducted on the theoretical level, with little political energy behind it. Today, with not an inconsiderable bit of irony, the political energy to let Americans choose what is and is not a basic Constitutional right has been given fierce life by the push for gay marriage from left-wing activists.

The gay marriage fight has also jumbled the usual political allies. In the last month open political warfare has erupted in the District of Columbia between prominent members of the black community and gays, with a City Council vote in favor of gay marriage prompting no less than black icon and former Washington Mayor Marion Barry (now a Council member) predicting, “We may have a civil war. The black community is just adamant against this [gay marriage].” Inevitably, there will be a push to let the residents of the District of Columbia, a heavily black city, have a direct vote on the issue, just as Californians did. It is not unnoticed the gay marriage ban added to the California constitution drew the support of some 70% of the state’s black voters — who turned out heavily to support Obama, the nation’s first black chief executive.

All of this on top of the steady drumbeat from Obama about fairness (particularly in terms of the economy) poses a serious threat to a movement that is determined to permanently cement a “no choice” policy on abortion into the nation’s laws.

How fair is “no choice” on abortion for voters?

It isn’t. Particularly when the Taney-esque defense of abortion as a “right” deliberately ignores the fact that those rights deemed “fundamental” by Americans have been submitted to voters for their approval.

Demanding the “right to choose” abortion policy has been given new life from the most unlikely of quarters — the gay marriage controversy. Yet the election of President Obama himself has shown the potency of appeals to simple fairness. It is an appeal the Obama administration continues to use effectively whether in a Notre Dame speech, calls for a new national economic policy or proposed changes in antitrust law.

Fairness — in this case described as the simple right of the American people to choose their own abortion policy — has been given new life. Fifty-one percent of the American people describe themselves as “pro-life.” The finding was verified as well by a Fox News poll.

So what’s wrong in letting Americans choose what abortion rights they want? One suspects the no-choice president will send up a no-choice Supreme Court nominee who will tell try and us.

Yet just when conservative activists believed they were on losing political ground in the long struggle over abortion, no less than President Obama himself — helped by the gay community — has come to their rescue with emotional pleas for fairness.

Fair enough.

Jeffrey Lord
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Jeffrey Lord, a contributing editor to The American Spectator, is a former aide to Ronald Reagan and Jack Kemp. An author and former CNN commentator, he writes from Pennsylvania at jlpa1@aol.com. His new book, Swamp Wars: Donald Trump and The New American Populism vs. The Old Order, is now out from Bombardier Books.
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