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Roe v Wade + 39: The Corruptness of the Pro-Life Movement
Today we celebrate, once again, the worst day in American history, when Roe v. Wade, combined with her lesser-known but equally-important companion decision, Doe v. Bolton, overturned some 45 state laws restricting or outlawing abortion. This allowed we, the People, to get started on the wholesale slaughter of two generations of unborn Americans. Today, we celebrate the deliberate killings of some 50-odd million children, who suffered varying degrees of butchery (and sometimes agony) before their broken bodies were tossed in Tupperware and dumpster'd. I used to keep careful count of just how many millions we were talking about, but it changes so often now I'm just rounding to the nearest ten million. Today, we celebrate the extinction of one-in-five members of my generation: would-be classmates, co-workers, teammates, and friends. Some would have been scoundrels, some cancer-curing geniuses. We have been robbed of them all. Today, we celebrate a ruling that has made it possible for the State of Massachusetts to order a forced abortion on a mentally-disabled Catholic woman, against the wishes of her daughter and the findings of her guardian ad litem. Today, we celebrate the dawn of the American Holocaust, which has done gangbuster business compared to Hitler's pathetic efforts in the Nazi Holocaust. The Nazis only managed to exterminate 12 million! Amateurs. We Americans beat you at warmaking, beat you at economics, and now we're beating you at Dalekry. The trick, it turns out, is you don't hide your death camps in Poland and pretend nothing's happening. You put them on the street across from the library and the Burger King and let the People bring the proscribed to you! Sure, it takes rather longer to wipe out an inferior race or kill all the mentally handicapped, but you get there! Happy birthday, Roe! But none of this is new. I've been whinging about the American Holocaust in Godwin-violating, Garrison-imitating ways since the first grade, and my annual recitation of the horrors of abortion has done little but enrage the defenders of legal abortion, who genuinely believe in the "right to choose" and (understandably) take considerable offense at being called murderers and compared to Adolf Hitler. Calling one-in-three women an accessory to murder is not how you win converts. Or is it? Anyway, I want to talk about something else on this sad anniversary: not the pro-abortion rights brigade, but we abortion Abolitionists, we politically-minded pro-lifers. The other side has often accused us of being sheep, willing to support anyone who talks a good talk about abortion, regardless of whether they actually do anything to protect innocent life under the law. I've started to wonder whether there may be some truth to the charge. I wrote a letter to the Catholic Spirit, my local paper, back in 2004, in which I argued that, basically, anyone failing to vote for George W. Bush in that fall's election was in clear violation of every tenet of Catholic voting, in a state of serious sin, and ought not present themselves for communion. With some modification -- I have now softened my position to match my father's -- I stand by that. But I don't think it unreasonable to express profound disappointment at the pro-life victories of the 109th Congress. Our representatives in Washington, with a putatively pro-life Republican majority in the House, did manage to get two possibly hopefully pro-Constitution judges onto the Supreme Court (their abortion jurisprudence has yet to be proven sound), but could only rage impotently at the murder of Terri Schiavo, and sent a bill funding (not banning, but funding) expanded embryonic stem cell research to the President's desk (where it was fortunately vetoed). We failed to pass some marginal legislation prohibiting the transport of minors across state lines to receive abortions without parental notification. The preceding session, with powerful majorities in both houses, yielded the Unborn Victims of Violence Act, which was nice in that it gave some federal recognition to the humanity of the fetus, and the Partial-Birth Abortion Ban Act, which finally cleared the president's desk after ten years and put a stop to some 0.08% of annual abortions (though those babies can still be killed in late-term D&E's). I don't mean to minimize those victories or the Democrats' abominable opposition to them (nor the abominable behavior of largely Catholic voters who put them there). But we had strong majorities and the best we could do is outlaw George Tiller and wait for Justice John Paul Stevens to finally, finally die? This struck me as absurd, and I wondered why we could not outlaw abortion by majority vote, taking advantage of the Personhood clause of the original Roe v. Wade decision to federally construe the meaning of the 14th Amendment in favor of the unborn. (I still have my notes on this idea, dated to the mid-2000s, in case anyone thinks I am projecting present-day thoughts into the past.) For thirty years, pro-lifers had been able to blame Democrats in power for keeping abortion legal, but we had no such excuse in 2002-2004. And I got to thinking. I've been thinking quietly ever since. Clearly, everyone working locally at places like Birthright or a crisis pregnancy center, people volunteering to help unwed mothers keep their babies, and the picketers and rosary-prayers in front of Planned Parenthood, the people knitting baby socks for the annual church Mary Shower, and even the small-time political advocacy groups like Pro-Life Across America (the billboard people!), are all doing wonderful, charitable work, building a culture of life at every level, not just in the legislatures. But our political arm? The big guns? The ubiquitous right-to-life groups? Bear with me for a long post here. (And, note, I've just been finishing up Deus Ex, which has put me in a paranoid frame of mind. Still, this line of thought began before Deus Ex.) This year has thrown a lot of things into fairly sharp relief, and now's a good day to finally say something. As a political movement, especially at the national level, I have come to believe that our pro-life institutions are either incompetent, scandalously imprudent, corrupt, or some combination of the three. No single fact jumps out at me as proving this, but a constellation of failings does. Consider a sampling of the little red flags I've seen, which have added up to a big ol' muleta: ITEM! The NRLC website is a mess. If there were internet laws, it would be sent to the design gulag. It would have deserved that fate as far back as the year 2000, when somebody noticed that marquee tagging and ubiquitous multi-column banner-linking made websites almost completely unusable. In the past ten years, the site has only deteriorated in terms of broken links, perverse navigational contexts, and up-to-date content. This is amazing. This is an organization with annual revenues (as of 1998) in excess of $15 million. Today, it's more like $9 million. Where it is all going? A Congressional scorecard? A newsletter? The "Autos for Life" program featured by a broken link on their website for the past several years? A couple years ago, I wrote to them and offered to rebuild their website for free. I never heard back. The FEC is having the same experience with them this year. Yeah, I hear you: "C'mon, James: bad website maintenance does not a conspiracy make." But think about it: how can a multi-million dollar organization, supposedly the leader in pro-life efforts in Washington and around the country, fail to check its email? ITEM! The NRLC, the much healthier AUL, and the Catholic dioceses of Jackson and Biloxi all declined to support Personhood this past fall. I don't mean that they failed to endorse MS Initiative 26, though they did. I don't mean that they allowed Planned Parenthood to pour lies into the state, driving I26's polling numbers down about 30 points in a matter of weeks and leading directly to the amendment's defeat -- though they did. I mean that all three organizations carefully avoided saying anything in support of the very idea that the unborn have inalienable human rights, too, opting instead to either make no statement or make reference to eventually, one day -- if we're very good boys and girls and elect all the right people continuously for a couple more decades -- "overturning Roe v. Wade." Roe is the halfway point of the battle. The goal has always been Personhood. At least, that's what I thought. Our national pro-life organizations are no longer willing to say so aloud, so afraid are they of upsetting the Grand Strategy of incrementalism they have been playing by since Casey. I'm not knocking incrementalism, which has been very effective in the past twenty years, and has protected the movement from dying the death of the Temperance Movement... but one begins to get the feeling that our major pro-life organizations will be willing to call it a day as soon as we limit abortion to, say, the French level of permissiveness. When did it become anathema to speak of Abolition except in hushed tones amongst ourselves? Why have the Frederick Douglasses been expunged from the national pro-life organizations? "Those who profess to favor freedom, and yet depreciate agitation, are men who want crops without plowing up the ground. They want rain without thunder and lightning. They want the ocean without the awful roar of its many waters. This struggle may be a moral one; or it may be a physical one; or it may be both moral and physical; but it must be a struggle." ITEM! Following up on Personhood, some of the reasons given for opposing it (by state orgs, as the national arms remain silent) appear to this non-lawyer to be abject nonsense. Consider Wisconsin Right-to-Life, which is currently embroiled in a very public battle with the pro-Personhood Pro-Life Wisconsin over their proposed Personhood amendment. They argue:
1. A Personhood Amendment Would Cancel out our Current Abortion Ban.
Wisconsin is fortunate to be one of only a handful of states which already has a law that prohibits abortion (s. 940.04 of the Wisconsin statutes). Right now, this law cannot be used because of the Roe v. Wade abortion decision which legalized abortion. Once Roe v. Wade is overturned, this law would immediately go into effect and protect unborn children by shutting down abortion clinics. A personhood amendment would be harmful because it would make this law that prohibits abortion invalid.
I'm just going to present the statute cited and the proposed amendment. If you can see any conflict between the two -- any conflict at all! -- please let me know by email or in the combox. To my untrained eyes, this claim appears to be simply and obviously false:
940.04 Abortion. (1) Any person, other than the mother, who intentionally destroys the life of an unborn child is guilty of a Class H felony. (2) Any person, other than the mother, who does either of the following is guilty of a Class E felony: (a) Intentionally destroys the life of an unborn quick child; or (b) Causes the death of the mother by an act done with intent to destroy the life of an unborn child. It is unnecessary to prove that the fetus was alive when the act so causing the mother's death was committed. (3) Any pregnant woman who intentionally destroys the life of her unborn child or who consents to such destruction by another may be fined not more than $200 or imprisoned not more than 6 months or both. (4) Any pregnant woman who intentionally destroys the life of her unborn quick child or who consents to such destruction by another is guilty of a Class I felony. (5) This section does not apply to a therapeutic abortion which: (a) Is performed by a physician; and (b) Is necessary, or is advised by 2 other physicians as necessary, to save the life of the mother; and (c) Unless an emergency prevents, is performed in a licensed maternity hospital. (6) In this section "unborn child" means a human being from the time of conception until it is born alive.
Here is the proposed Amendment (punchline in bold):
Resolved by the assembly, the senate concurring, that: Section 1 of the constitution is amended to read:
Equality; inherent rights. Section 1. All people are equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted, deriving their just powers from the consent of the governed. As applied to the right to life, the terms "people" and "person” shall apply to every human being at any stage of development.
WI Right-to-Life goes on to argue:
2. A Personhood Amendment Would Not Protect Wisconsin's Unborn Children.
Second, without passing an entirely new law that prohibits abortion, a constitutional amendment in and of itself would not stop a single abortion. Some people mistakenly believe that exiting laws on homicide and manslaughter would cover abortion following passage of a personhood amendment. However, these laws were not written with the unique medical situations which apply to abortion. For over 100 years, Wisconsin law has made a distinction between abortion and homicide which will not be changed by a personhood constitutional amendment. One of the real problems with a personhood amendment is that it would knock out the law we already have and force Wisconsin to pass a new one. And, when it comes time to pass such a law, will there be a pro-life legislature in place to pass it? And beyond that, will there be a pro-life Governor to sign it? Unfortunately, there is just no way to know.
This, too, appears to be scaremongering gibberish. I don't even know what to make of the awkward sentence about "unique medical situations," except that it is vaguer than a tergiversating used car salesman. So I move on. Here is Wisconsin's first-degree murder law (there are parallel clauses in its other homicide laws). Yes, it draws a distinction between the born and the unborn person. No, it is not "knocked out" by declaring the unborn person to be such. No, it does not require further enabling legislation in order to come into force in favor of unborn persons. The language is explicit:
940.01 First-degree intentional homicide. (1) Offenses. (a) Except as provided in sub. (2), whoever causes the death of another human being with intent to kill that person or another is guilty of a Class A felony. (b) Except as provided in sub. (2), whoever causes the death of an unborn child with intent to kill that unborn child, kill the woman who is pregnant with that unborn child or kill another is guilty of a Class A felony. (2) Mitigating circumstances. The following are affirmative defenses to prosecution under this section which mitigate the offense to 2nd-degree intentional homicide under s. 940.05: (a) Adequate provocation. Death was caused under the influence of adequate provocation as defined in s. 939.44. (b) Unnecessary defensive force. Death was caused because the actor believed he or she or another was in imminent danger of death or great bodily harm and that the force used was necessary to defend the endangered person, if either belief was unreasonable. (c) Prevention of felony. Death was caused because the actor believed that the force used was necessary in the exercise of the privilege to prevent or terminate the commission of a felony, if that belief was unreasonable. (d) Coercion; necessity. Death was caused in the exercise of a privilege under s. 939.45 (1).
Of course, under Roe v. Wade, both 940.04 and 940.01(1)(b) are held to be unconstitutional and unenforceable, which is why there are still abortions in Wisconsin today, with or without a Personhood amendment. The only thing Personhood would do is offer the unborn the very legal cover suggested by Justice Blackmun during the re-argument of Roe v. Wade back in 1973--the 14th Amendment of the U.S. Constitution--which would oblige a new court confrontation over Roe, beginning in Wisconsin. Success in this battle is precisely what would be needed to save unborn lives in Wisconsin. It is both the beginning and the end. Now, there are very good reasons to believe that we would lose that court battle, and therefore plenty of reasons to prudently withhold support for actual Personhood Amendments at this time. The (in)famous Bopp memorandum is the finest literature on the subject. I strongly disagree with Mr. Bopp in several places, but I have the fullest respect for those who concur with his conclusions -- including WRTL, which cites his arguments later on in their anti-Personhood pamphlet. (However, I encourage those concerned to read the persuasive reply from the Thomas More Law Center.) But that there are reasons to decline to sign on with Personhood at this time is no excuse for making baseless and devastating accusations against it. Nor is it an excuse to go radio silent on the issue as a whole, since Personhood is -- theoretically -- our ultimate goal. Nor is it an excuse to let Planned Parenthood's wholesale liemongering campaigns go unanswered, even if they are targeted against those with whom one may have considerable tactical differences. What is going on here? FULL DISCLOSURE: I have an aunt who is very active in Wisconsin Right-to-Life (possibly more than one aunt, come to think of it). I have not significantly communicated with her over this, and don't know her present considered opinion on WI Personhood. Further, I would welcome an explanation of WRTL's apparently absurd position on the statutory effect of Personhood. I am, after all, no lawyer, and they have lawyers coming out their pro-life ears. Any official communication from their organization will be posted in full upon receipt. Finally, I do not mean to single out either Bishop Latino or WRTL for particular scorn. These are patterns I have seen repeated throughout the pro-life establishment. I just happen to be most familiar with the Wisconsin situation. ITEM! The greatest power wielded by right-to-life political orgs is the Pro-Life Legislator Scorecard. If you have a 100% rating from NRLC or MCCL (Minnesota Citizens Concerned for Life), you have just pocketed 10% of the vote, and made a strong argument to another less single-issue 25% of the electorate. After all, we single-issue pro-lifers believe no lawmaker can be trusted to make good law who does not fundamentally understand the Constitution's guarantee of the right to life and the primary duty of the law to prevent violence by one person against another. We look to organizations with a mission statement that reflects that, and our votes in primaries can easily be swayed by a few percentage points' difference in Pro-Life-Ness, as measured by these organizations. So is it unfair of us to expect that the votes on which our legislators are scored actually be directly related to the right to life? Surprise: they aren't. I first learned this back in 200...5? I think? The Minnesota state house was working on a proposal to change some state elections to use ranked choice voting, rather than the traditional "first-past-the-post" simple plurality voting. I supported this effort (it failed, surprising no one). MCCL, I later learned, dinged anyone who supported the initiative by 9% in their ratings. They dinged you another 9% if you supported McCain-Feingold campaign finance restrictions. In fairness, those laws were terrible, and damaging to grassroots organizations like MCCL, and have since largely been overturned as unconstitutional -- but it didn't have anything to do with the right to life. By MCCL's logic, a candidate who opposed abortion in ALL circumstances, who opposed government funding in ALL circumstances, who supported EXTENSIVE restrictions on abortion, but supported these two initiatives, would have received the same "pro-life" score as a candidate who supported state funding for abortions in rape and incest cases and could just barely tolerate the parental notification laws on the books, so long as he also backed MCCL on the voting and speech issues. However you feel about the laws in question, that is a scandal against pro-lifers everywhere. This isn't limited to my home state. Here are some of the questionable bills NRLC scored in the past 15 years: the DISCLOSE Act; the Medicare Prescription Drug Price Negotiation Act; the Medicare Modernization Act (Medicare Part D); the Bipartisan Campaign Reform Act. This is not a common problem, and NRLC does a great deal of good service with its scorecards (although they necessarily oversimplify some issues). It is nevertheless distressing to see inappropriate scoring like this taking place at both the state and federal levels. ITEM! Alright, so I have a laundry list of disconnected complaints about the pro-life movement. So what? This does not a "corruptness" charge make, and any article title that provocative had better the heck follow through. So here's my crown jewel, the thing that really stuck in my craw and led me to open up about all my misgivings with the present-day pro-life movement. It's called the Sanctity of Life Act. Never heard of it? Same here, until earlier this year. This surprised me, because I make it a point to know absolutely everything about abortion legislation and case law. And the Sanctity of Life Act is not new. It was first introduced in 1995 by Rep. Steve Stockman (R-TX). It promptly died in a House committee under the Clinton regime. It was resurrected in 2005 and has been reintroduced in every Congress since. There is no corresponding Senate bill, and to my knowledge there never has been. Here is the text of the (good bits of the) Sanctity of Life Act of 2011, the latest version. I'll explain it after the blurb:
SEC. 2. FINDING AND DECLARATION.
(a) Finding- The Congress finds that present day scientific evidence indicates a significant likelihood that actual human life exists from conception.
(b) Declaration- Upon the basis of this finding, and in the exercise of the powers of the Congress--
(1) the Congress declares that--
(A) human life shall be deemed to exist from conception, without regard to race, sex, age, health, defect, or condition of dependency; and
(B) the term `person' shall include all human life as defined in subparagraph (A); and
(2) the Congress recognizes that each State has the authority to protect lives of unborn children residing in the jurisdiction of that State.
SEC. 3. LIMITATION ON APPELLATE JURISDICTION.
(a) In General- Chapter 81 of title 28, United States Code, is amended by adding at the end the following new section:
`Sec. 1260. Appellate jurisdiction; limitation
`Notwithstanding the provisions of sections 1253, 1254, 1257, and 1258, the Supreme Court shall not have jurisdiction to review, by appeal, writ of certiorari, or otherwise, any case arising out of any statute, ordinance, rule, regulation, practice, or any part thereof, or arising out of any act interpreting, applying, enforcing, or effecting any statute, ordinance, rule, regulation, or practice, on the grounds that such statute, ordinance, rule, regulation, practice, act, or part thereof--
`(1) protects the rights of human persons between conception and birth; or
`(2) prohibits, limits, or regulates--
`(A) the performance of abortions; or
`(B) the provision of public expense of funds, facilities, personnel, or other assistance for the performance of abortions.'.
Here is the effect: the Sanctity of Life Act would, with one hand, overturn Roe v. Wade by eviscerating its core argument, that the fetus is not protected by the 14th Amendment. This sends abortion back to the states. Instantaneously, 20 state laws against abortion kick in. Another 15 would sharply limit abortion in various interesting ways. Abortion is dead or hanging on by a thread in half the Union, and the pro-life movement is able to open up serious abolitionist battlefronts in those that remain. With the other hand, the Sanctity of Life Act would strip the ability of the courts to shut down these state-level efforts. (It does not prevent court rulings finding in favor of the right to life, despite some of the Bopp Memo's stranger claims.) The bill makes sure Roe stays dead despite the inevitable Planned Parenthood court case. The capacity of Congress to so determine the extent of the judiciary's interpretive power is rarely exercised, but is clearly given in Article III. By getting the job done at the federal level, it bypasses all the objections of the Bopp Memo to state Personhood amendments. Bottom line: with 50% majorities in both houses and the president's signature, the Sanctity of Life Act would save half a million lives a year, open the way to saving the rest, and help build momentum toward the long-hoped-for Human Life Amendment. I repeat: it does all this with a majority vote. In theory, we had the votes to do this in 2004. It's similar, in fact, to what I thought up as a fifteen year old, only I never thought of prohibiting the courts from getting in the way. So why in the name of Heaven and Hell am I only hearing about this bill now? I don't think I'm alone. The Sanctity of Life Act had two co-sponsors when it was introduced in 1995. Today it has zero -- it is sponsored and championed solely by that idiosyncratic Republican presidential candidate, Rep. Ron Paul. There has been no remotely similar legislation in the Senate since the departure of Sen. Jesse Helms, who did put forward an Unborn Childrens' Civil Rights Act throughout the Clinton years. No one in the national pro-life establishment is pushing it. The USCCB's pro-life office is too busy fighting the Obama Administration's tyrannous anti-conscience regulations to pay much attention to any pro-life activities these days. So what are the pro-life movement's current priorities? Repealing Obamacare and trying again to cut off Planned Parenthood's government funding -- neither a victory that will save any lives, just victories that will prevent the deaths of any more. This is shameful. It is a disgrace to the pro-life movement, and it is a disgrace to those of us who have supported it so enthusiastically over the years -- we who have gone so far as telling family and friends that they, essentially, risk the flames of Hell if they vote for a Democrat over a Republican. It is a sad commentary on Sen. Santorum, who hasn't backed in his life one word of legislation that would save a single child from abortion in this demented nation, and it is a sad commentary on Rep. Paul, who waited until after the end of the Republican majority to bring forward the Sanctity of Life Act. I will grant, for the sake of argument, that, despite large majorities in both houses, we could not get the bill passed. I'm not sure why I need to concede this -- we could break a filibuster with the nuclear option for a civil rights issue like this, and if 55% GOP in both houses, plus pro-life Democrat defectors, isn't enough to enact pro-life legislation, what the devil do we elect Republicans for? But just supposing we couldn't get this thing through. Why wouldn't we try? Why aren't we taking a both-and approach? Why don't we go after and outlaw the unpopular forms of abortion while also staking out an argument on the popular ones? Why do we let the muddled middle define the meaning of "pro-life," so that Sen. Harry Reid can make a serious claim to be on the same page as the so-called "pro-life mainstream" when it comes to rape and incest exceptions? Why do our pro-life leaders insist on waiting, waiting, waiting, for decades on end, before we can so much as show our true colors in Washington? Why must carefully silence ourselves when it comes to rape and incest lest someone get wind we believe the unborn have rights, while throwing our weight around on campaign finance issues that have nothing to do with the right to life, letting our main organs of communication rot in their internet homes, and do everything short of giving Planned Parenthood a heap of money -- up to and including colluding in ridiculous legal falsehoods -- in order to ensure the defeat of the too-rare efforts of our state-level pro-life activists? Why are we letting millions of babies die while we lick the bones of base-pleasing pseudo-victories like the Unborn Victims of Violence Act? Is it possible, is it just possible, that the Democrats' claim about the Republicans using pro-lifers to gain political power might have some truth to it after all? Or are we to believe that our pro-life orgs are merely monumentally bad at strategy and politics? Either way, what are they there for? Are we satisfied with another forty-year wait just to end Roe, to say nothing of enacting Personhood? On the 39th anniversary of Roe v. Wade, something is rotten in the state of Denmark. It is well past time for the pro-life movement to take a long hard look at itself. Let us keep the cold and the hot, but the lukewarm let us vomit out of our mouth. We do not accept a covenant with death. We do not acquiesce to detente with Hell. Our leaders tell us to seek moderate solutions for now: I say, "No." Tell a man whose house is on fire to give a "moderate" alarm; tell him to "moderately" rescue his wife from the hands of the ravisher; tell the mother to "gradually extricate" her babe from the fire into which it has fallen; — but urge me not to use moderation in a cause like the present. We are in earnest — we will not equivocate — we will not excuse — we will not retreat a single inch — AND WE WILL BE HEARD! The apathy of the people is enough to make every statue leap from its pedestal, and to hasten the resurrection of the dead!