Wednesday, August 22, 2007

Mitt Romney Needs Pro-Life 101 [SK]

Just when I thought Mitt Romney was making a good case for his pro-life credentials comes this soundbite indicating he doesn't have a clue about the moral logic of the pro-life view. According to ABC news, Romney said that although he is 'pro-life,' he supports letting states "make their own decision" about whether to keep abortion legal.

Yikes. Can you say hello Stephen Douglas? Hello popular sovereignty? Here's the full quote from the ABC story:

"My view is that the Supreme Court has made an error in saying at the national level one size fits all for the whole nation," Romney told Nevada political columnist Jon Ralston in a televised interview. "Instead, I would let states make their choices."

Asked by Ralston if it was "OK" with him that Nevada is a "pro-choice state," Romney said, "I'd let states make their own decision in this regard. My view, of course, is I'm a pro-life individual. That's the position I support. But, I'd let states have this choice rather than let the federal government have it."
ABC responded (correctly) that as recent as August 6, Romney voiced support for the proposed Human Life Amendment--which, if enacted, provides the unborn with protection under the 14th Amendment, thus banning abortion at the federal level. Romney's campaign sought to deflect the apparent contradiction by saying that while the candidate supports the amendment and is truly pro-life, he does not think it's "achievable" at this time.

That last point is fair enough: There's no disputing that anything remotely resembling a Human Life Amendment is DOA with the Pelosi-Reid congress. To avoid trouble, all Romney had to say was that he supports an amendment and until we get one, the federal courts should not foreclose on state laws protecting the unborn. What pro-lifer could argue with that? (The secondary headline on the piece claims he said as much, but the article itself tells a different story.) However, Romney did more than describe the current political landscape. He said while he is a pro-life "individual," states should have the right to decide the abortion question for themselves and the federal government should stay out of it. From a pro-life perspective, that's a deeply problematic resolution to the question "Where do basic human rights come from in the first place?"

The Founders and Lincoln gave a much better answer than Romney, distinguishing natural human rights from merely legal ones. Natural rights are those rights that you have simply because you are human. They are grounded in your human nature and you have them from the moment you begin to exist. For example, you have a natural right not to be harmed without justification as well as a natural right not to be convicted of a crime without a fair trial. Government does not grant these basic rights. Rather, government’s role is to protect them. In contrast, legal (or positive) rights are those rights you can only acquire through accomplishment or maturity. These rights originate from the government and include the right to vote at your eighteenth birthday and a right to drive on your sixteenth. But your natural right to live was there all along. It comes to be when you come to be.

The distinction between natural and legal (positive) rights was underscored dramatically in the famous Lincoln/Douglas debates. At issue was this question: Were the rights mentioned in the Declaration of Independence natural ones or were they merely the creation of positive law? Lincoln argued for the former: The claim “All men are created equal” meant that no man by nature is the ruler of another man in the way man by nature rules a dog. If the slave is a man, those same rights found in the Declaration (including the right to liberty) apply to him as they do the white man. In short, the slave was a human being with certain rights that spring from his nature and those rights hold across time and place. They are present whenever beings with a human nature are present, meaning neither government nor popular opinion could legitimately deny them. Douglas took the latter position, suggesting that who was and was not a bearer of rights depended on popular sovereignty. Unlike Lincoln, he acknowledged no truths grounded in the nature of human beings that would hold across time and place. Instead, we only have those rights granted through positive law. Southern states did not count slaves as bearers of rights, meaning lawmakers could settle the issue as they saw fit.

The moral logic of the pro-life view--apparently missed by Romney--is that elective abortion unjustly robs the unborn of his natural right to life and thus NO state can legitimately allow the practice. From California to Massachusetts, the natural rights of the unborn transcend any laws generated by the states.

With his latest abortion soundbite, the once pro-choice governor and current pro-life candidate appears to embrace the popular sovereignty of Stephen Douglas, a doctrine that once killed slaves because they were too black and now kills fetuses because they are too small.

Mitt, you gotta do better. Fire your speech writer and call Frank Beckwith, immediately.


  1. Scott,

    Many pro-lifers argue that Roe was an exercise of judicial activism; that SCOTUS did not have the right to decide this issue for the states. It was out of their judicial domain. I have two questions for you about this.

    (1) I see this as a double-edged sword because the same people usually want to see SCOTUS overturn Roe. If SCOTUS was wrong to have involved itself with the abortion issue in 1973 to make it legal, why think it would be right for SCOTUS to involve itself again to make abortion illegal today? Wouldn’t both cases be an example of judicial activism; i.e. the Court overextending its authority to make law rather than interpret the Law?

    The only way I can see to escape this apparent inconsistency is for us to support SCOTUS overturning Roe without taking the additional step of outlawing abortion; i.e. just returning the issue back to the states and/or the federal Legislature. If that is all they are doing, then there is no judicial activism involved. It’s just a matter of correcting a former instance of judicial overreach. What do you think?

    (2) If I remember correctly, Melinda Penner argues that it was within the judicial domain of SCOTUS to hear and rule on the case because abortion robs citizens of their right to life (a Constitutional issue), but that they ruled the wrong way. Do you agree?


  2. Hi Jason, I dealt with a similar question over on STR's blog today and here is what I wrote:

    1) Very good point--Romney is indeed the most viable of the pro-life candidates, thus in no way am I suggesting we shouldn't vote for him. My only claim is that he needs to brush up on the moral logic of our view or risk sounding incoherent (as he most certianly did during his interview on "This Week").

    2) If Roe and Doe get axed, Romney could hurt us if, in the name of state's rights, he either refused to sign a congressional bill protecting the unborn at the federal level or if he short-circuited an amendment process. In reality, I doubt he would do either. Still, what Romney should say (and let's hope he comes to this) is that he rejects the federal courts co-opting the abortion issue in such a way the other two branches of government get no say protecting what is arguably human life. As for the individual states, he should insist each has a right to protect life and the federal courts should not foreclose on that right.

    Of course, this opens him to a follow-up question: "If SCOTUS rejects Roe/Doe AND declares the unborn are human subjects deserving protection under the 14th Amendment, would you still oppose the federal courts injecting themselves into the issue?"

    The answer, I think, is to say "that depends on the merits of the particular case at hand." The big problem with Roe/Doe is that both cases were justified out of thin air with little (some would say no) constitutional warrant. To quote Byron White, Roe was an act of "raw judicial power." In short, judges should stick to interpreting the law rather than making it.

    Suppose, however, Congress passes a federal law recognizing the natural right to life of the unborn. Suppose further a liberal judge throws it out. If SCOTUS reviews the case and has good reason to uphold the congressional law, I would not call that a judicial power grab on the order of Roe/Doe.

    Posted by: Scott Klusendorf |

  3. Scott, I appreciate your point, but I think you're confusing legal/political discussions with moral ones.

    No one has the moral right to kill their child. But under our federalist constitution, the Congress really does not have the legal authority to outlaw abortion.

    The fact that they frequently ignore their limitations is a separate conversation. Christians have to deal with the law as it is. We can seek to change it, but we cannot ignore it.

  4. Scott,

    That response was helpful. It tells me you see the double-edged sword in opposing Roe as judicial activism, and yet wanting SCOTUS to reverse Roe AND declare abortion unconstitutional. But it didn’t really tell me whether you would be opposed to SCOTUS doing so. You said it depends on the merits of the case, but I’m not so sure I understand what you mean. Under what circumstances would such judicial overreach be acceptable?

    This brings up a larger question (one that chrisb brought up). Let’s say SCOTUS overturns Roe and declares abortion unconstitutional in the process. Do we rejoice because the outcome is favorable to the pro-life mission, or do we bemoan the fact that the favorable outcome was achieved in a politically illegitimate way? To be honest, you would not see me fighting to have the case overturned so that the state or federal legislatures could decide the matter (the proper branch of government to decide such matters). Indeed, I think it would be immoral for me to do so given the fact that it could result in the death of babies who would not have otherwise died (if state or federal legislatures voted to make abortion legal). I would be happy with the outcome, even though I disagree with who made the decision. Ironically, that is the same place many pro-abortion apologists are in today. They don’t like Roe, but they are fine to let it stand because it accomplishes their goal of securing abortion rights.

    So I have this tension between knowing how the political system is supposed to work and wanting to achieve the pro-life goal via the right political channels, and yet willing to accept a politically mangled means of achieving that goal. One the one hand I think it is more important THAT our government protect natural rights than HOW they secure them (one branch vs. another). If the proper branch won’t do it, another branch should step up to the plate even if it requires that they transcend their Constitutionally-defined boundaries. On the other hand, I know that if we don’t preserve our political system the rule of law could break down, and chaos could result. Indeed, the pro-life victory could be undermined by other branches of government who decide that they will act outside of their Constitutionally-defined role as well to contradict, or plainly ignore what SCOTUS has said. It’s not an easy tension to resolve.


  5. Chrisb,

    See my previous comments to Scott that touch on your point.

    To add to what I already said, I tend to agree with you that the U.S. Congress doesn’t really have the Constitutional authority to decide the matter. Of course, they make laws on a whole hosts of issues for which the Constitution does not give them the authority. As I’m sure you well know, they stretch the commerce clause beyond recognition to be able to justify many of the laws they pass!

    But consider this. While the federalism the Founders envisioned has been being chipped away at for a very long time, and the federal government has more power than they probably would have ever envisioned/intended it to have, the bottom line is that this is they way it is now. We have a very strong federal government who stretches the commerce clause all the time to make law for the entire country, and the people of the U.S. have come to accept that. Indeed, I would venture to say that most people prefer that. They look to the federal legislature to decide important matters rather than their own state legislature.

    So we can debate whether our political system is working the way the Founders intended (and I would agree it’s not), but the bottom line is that we are not working in the political system as it was in 1800. We are working within the political system as it functions in 2007. And as it functions today, the U.S. Congress makes a lot of laws that apply to the whole nation, and many people like it that way. Given this reality, I’m not convinced it would be illegitimate for us to work for a federal ban on abortion. If our opponents are using the current political realities against us, we have to use that same system against them lest we lose. If the only people who are allowed to carry guns are the bad guys, the good guys will be dead on the floor. I’m not saying we fight dirty, but I’m saying that we use the same accepted channels that they are using.


  6. Jason:

    Section 5 of the 14h amendment does in fact give Congress the right to enforce the first 4 sections:

    "Section 5. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article."

    Thus, Congress could, if it wanted to, declare the unborn a person under the 14th amendment. It just chooses not to.


  7. Thanks for pointing that out Mr. Beckwith.


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