Could or Would John McCain Ban Abortion?
A new Barack Obama ad tries to get pro-choice voters alarmed about John McCain’s steadfastly anti-choice record. An announcer argues that “as president, John McCain will make abortion illegal” then shows a snippet of Meet The Press where McCain tells Tim Russert that he favors “a constitutional amendment to ban all abortions.” The ad concludes: “We can’t let John McCain take away our right to choose. We can’t let him take us back.”
Brendan Nyhan says this “distorts” McCain’s position and deems the overall product “misleading.” What’s wrong with it?
The president can’t make abortion illegal. If John McCain appointed new conservative Supreme Court justices (who must be confirmed by the Democratic Senate), it is possible that the Court could decide to overturn Roe v. Wade. In that case, the issue would be returned to the states, who would each create their own abortion policies through the legislative process. The odds of McCain successfully passing a constitutional amendment to create a national ban on abortion are zero — there is simply no way he “will make abortion illegal.”
For one thing, conservative members of congress regularly seek to pass federal legislation restricting reproductive freedoms (”partial birth” abortion bans, etc.) and I see no reason to think that would change if Roe were overturned. And more broadly, the idea that it’s unfairly deceptive to characterize McCain’s position on abortion accurately — he favors outlawing abortion throughout the country — on the grounds that it’s extremely unlikely that McCain would be able to deliver legislatively on his policy preferences seems like an odd standard. Democrats will almost certainly have a congressional majority in 2009 which makes it very unlikely that any aspect of his domestic agenda will pass precisely as proposed. Does that make it unfair to critique his domestic policy proposals?
54 Responses to “Could or Would John McCain Ban Abortion?”
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September 3rd, 2008 at 1:30 pm
Sure, you can critique his domestic policy proposals. But be realistic. McCain won’t get his tax cuts passed; he won’t get his most extreme judges confirmed. A vote for McCain is a vote to constrain the most extreme impulses of a Democratic congress. If you put it that way, it doesn’t sound so bad.
September 3rd, 2008 at 1:30 pm
I guess instead of the ad saying that McCain will make abortion illegal it should have said that as president, McCain would try to make abortion illegal. Mind you, “would try to” doesn’t sound as dire as “will” and I think that sense of urgency (right or wrong) was what the ad was going for.
September 3rd, 2008 at 1:30 pm
Lil Brendan is an ignorant ass seeking to obfuscate the wingers Supreme Court packing scheme. No more fucking Scalitos.
September 3rd, 2008 at 1:32 pm
But be realistic. McCain won’t get his tax cuts passed; he won’t get his most extreme judges confirmed.
What the hell are you talking about? He would most certainly get judges appointed that would overturn Roe v Wade. And that’s the point isn’t it? Pack the court and abortion rights will always be at risk to Republican legislatures. We wouldn’t be able to reverse the situation for decades, in all likelihood.
September 3rd, 2008 at 1:33 pm
Not to mention that if he is elected, McCain has promised over and over again to nominate right-wing judges (the code word is “originalist”) to the Supreme Court which will result in a solid right-wing majority which will likely last at least a decade. (I don’t trust the Democrats to stand up to McCain — the only nominee Bush didn’t get through was Miers, and that wasn’t the Democrats who objected!).
Roe vs Wade will not survive, and almost immediately abortion will be completely outlawed in large parts of the country. So if you’re living outside the north-east or the west coast in a few years time, there might as well be a federal ban on abortion.
September 3rd, 2008 at 1:40 pm
The President can’t overturn Roe v Wade without Congress–so what?
The President also can’t pass tax cuts without Congress. Heck, he can’t decrease spending without Congress! Yet Nyhan seems to think it’s fine for McCain to campaign on tax cuts and vague promises of decreased spending.
Furthermore, if McCain thinks there should be a constitutional ban on abortion, voters should know that even if odds are overwhelming he won’t be able to make it happen. Likewise, if Barack Obama wanted to go to war with Canada (or, perhaps have Alaska secede from the United States), voters should know that even though he can’t go to war without Congress.
September 3rd, 2008 at 1:41 pm
You really want to take that risk? Roberts and Alito are anti-abortion and vote the way the right-wing wants them to all the time, and the Democrats allowed them through. A right-wing majority Supreme Court will have the power to roll back all kinds of advances in social freedoms and equality America has made in the past few decades.
Say goodbye to the right to choose (so highly praised by fundamentalists, ironically enough, when Palin made her “choice” not to have an abortion), the right to have consensual sex with another adult (Lawrence vs Texas), and equal pay for women, etc. etc.
A right wing supreme court is the religious right’s holy grail. To believe that McCain will not do this for them after bowing to pressure and nominating Palin as his running mate, is folly in the extreme.
September 3rd, 2008 at 1:41 pm
I would really caution people on thinking that this thing will be thrown back to the states, if the conservatives get their way. The Court would probably rule that unborn babies deserve constitutional protections, and thus, abortion would be illegal throughout the United States.
September 3rd, 2008 at 1:42 pm
Any new conservative judges will support a national ban on abortion. A majority of such judges is all that is needed. (I’m sure Justice Scalia already knows how he would write the majority opinion on that case.)
September 3rd, 2008 at 1:44 pm
The only way Roe gets overturned is if one of the more liberal justices who upholds it-Kennedy, Stevens, etc. retires and McCain nominates someone who will overturn it. Alito and Roberts both replaced relatively moderate judges and did not disturb the 5 votes that exist to uphold Roe. If Stevens retired, the Democrats would fight a lot harder against any justice who could conceivably overturn Roe than they did against Roberts and Alito, who didn’t really shift the balance of power on the Supreme Court since Kennedy remains as the swing vote.
September 3rd, 2008 at 1:46 pm
What Nyhan may be implying, although he probably wouldn’t say it outright, is that McCain’s stated position on abortion is disingenuous; i.e.: McCain doesn’t want a federal ban on abortion, but needs to win so-con votes by saying that he favours such a ban, and so sees no harm in calling for a ban that will never be implemented anyway.
Politicians do this all the time, of course, which certainly throws some uncertainty into the whole process of trying to discern their true beliefs. However, I agree with the general point that Matt has often made: we have nothing better to go on when trying to determine what candidates are advocating than to listen to what they’re advocating.
Well, until we develop a mind-reading device and/or a super-game-theory-analysis device, that is.
September 3rd, 2008 at 1:47 pm
So McCain’s talking point is that he won’t really be able to do what he wants?
That’s experience for ya.
September 3rd, 2008 at 1:51 pm
Please, someone, save us from the most extreme impulses of a Democratic Congress! Look where they’ve gotten us so far!
September 3rd, 2008 at 1:54 pm
I think this post is really unhelpful and a lot of the discussion in it is beside the point. Won’t John McCain use the power he has to get abortion closer to being illegal (and he does, after all, have practical power to do that)? Are people suggesting that the Democrats in congress are now going to block any Supreme Court nominees who are not pro-choice? By what reasons would anybody conclude that this is the direction they are heading in?
Anyway, the political winds could change while McCain is president and he could end up with a Republican congress.
A McCain presidency is simply much more likely to create obstacles to or stigmas on abortion than an Obama presidency, and to take the law and the courts in the direction of banning abortion. One or two dumb people created one ad that used too-strong wording to describe this, but so what?
September 3rd, 2008 at 1:54 pm
Does that make it unfair to critique his domestic policy proposals?
Uh, yes, obviously. Enabling idiots like Nyhan always think it’s unfair to criticize a Republican.
Another edition of simple answers to stupid questions.
September 3rd, 2008 at 2:00 pm
If McCain becomes president and gets the chance to replace one or two very old liberals on the Supreme Court (likely) with cockamamie activist conservative “judges” (I use the term loosely), then they could re-visit Roe and go so far as to say that the constitution actually prohibits abortion somehow. It wouldn’t take a lot more imagination than that used to create the Roe decision, as the are a few under-used general clauses about people’s or citizens’ rights in the constitution that I’m sure the conseratives wouldn’t mind filling in a little. The President of the United States is the only person who can get this chain of events in motion. So shouldn’t John McCain’s trying to get abortion banned be precisely what pro-choice activists are concerned about, even if John McCain can’t personally ban abortion?
September 3rd, 2008 at 2:14 pm
The thing is, to find some sort of constitutional protection for the unborn, or even to find that abortion has some relationship to interstate commerce under the more recent conservative interpretations of the Commerce Clause, would take a complete reversal from everything Scalia and Thomas have written about Roe. I’m not saying it’s not technically possible, I’m just saying that to declare it anything other than a state issue would be to completely repudiate everything they’ve written on the subject.
September 3rd, 2008 at 2:17 pm
The interesting thing about the Obama ad is that it makes sense only because Obama is running against a guy who *isn’t* a culture warrior and has blown a lot of smoke to his advantage on his abortion position. If Obama were running against Palin, there would be no need to antagonize pro-life Obama leaners by attacking her and drawing distinctions on abortion (perhaps on the extremity of her views). But as it stands, there is a significant chunk of McCain support who think he’s on the choice side of the debate.
September 3rd, 2008 at 2:21 pm
Shorter Nyhan: McCain’s pretends his policy preference is meaningful, therefore Obama is a liar.
And Swan does have a point: the tendency of the Roberts court has been to restrict facial claims and tighten the requirement for as-applied challenges to state laws of dubious constitutionality. Unless guns are involved.
Furthermore, while ‘I want a constitutional amendment for…’ is usually political grandstanding, it oughtn’t to be taken in isolation. In general, seekers of constitutional amendments don’t treat it as a one-time thing: if you can’t bad gay marriage in the constitution, you’re still likely to pursue statutory measures along similar lines.
September 3rd, 2008 at 2:23 pm
Brendan is not necessarily correct. In the past, Conservatives have pressed the argument that fetus’ deserve inclusion within the scope of the Equal Protection Clause. A Supreme Court that accepted this argument would strike down any provision of State law distinguishing being a fetus and a birthed-person, thereby criminalizing all abortion.
So it all depends on what arguments get made, and which get accepted.
September 3rd, 2008 at 2:26 pm
the mccain fellow and abortion reminds you of pete wilson and immigration
September 3rd, 2008 at 2:29 pm
He would most certainly get judges appointed that would overturn Roe v Wade.
How would he get them past the 55 Democrats in the Senate? There is no way they would ever let another Roberts or Alito get on the court.
Pack the court and abortion rights will always be at risk to Republican legislatures.
Democratically elected legislatures making laws! Scary! How will society survive?
September 3rd, 2008 at 2:45 pm
How would he get them past the 55 Democrats in the Senate? There is no way they would ever let another Roberts or Alito get on the court.
I am sure that the when the moment comes to pass heroes like you will defend the legislature’s perogative to block radical Republican nominees. But the rest of the press will surely be carrying water for McCain at that time, making it very difficult politically.
Democratically elected legislatures making laws! Scary! How will society survive?
With enough years of Republican rule, I think there would be cause for concern, but that’s an aside. An elected legislature can pass highly unjust laws, as has happened many times in the past. The fact that they were elected will not be much consolation when the basic rights of poor/minority southern women are stripped of their right to choice and forced to choose between back-alley abortions and unwanted pregnancy. But this line of argument is a dodge anyways. If you favor stripping women of those rights obviously you want to see McCain elected, but the whole point of the post is that a president McCain is a threat to those rights given the current demographics of the Supreme Court.
September 3rd, 2008 at 2:45 pm
Jibeaux at 17, I’m sure that all that jurisprudence wouldn’t be a problem even though it came from Scalia and Thomas’ pens.
First of all, they sure don’t want there to be a right to an abortion.
Second of all, that jurisprudence was written by them when they found themselves in the situation of the conservatives not having enough votes on the Court to “win” a case that would get rid of Roe completely, and believing they had to instead settle for (at least for the foreseeable future) limiting Roe consistently with Roe’s own rationale.
Finally, a new abortion jurisprudence based on another part of the constitution could technically just override Roe. The conservatives could say, “The clause we are relying on now wasn’t at issue and wasn’t invoked in the previous abortion cases, and it actually takes priority over Roe and everything interpreting Roe. The jurisprudence of Roe and its progeny only apply if X-Y-and-Z clause, which we are relying on now, wasn’t in the constitution, or to the extent that it had been un-interpreted by us as it could apply to abortion.” Or the specific clause was tried on abortion by the Supreme Court, but attempts to use it to ban abortion were rejected, the conservatives could just overturn the previous decision (something they have no problem with doing). The more recent conservative Court has actually been much more willing to ignore stare decisis and to overturn very recent decisions than the Court has been for just about all its past (if I’m remembering correctly).
September 3rd, 2008 at 2:50 pm
Sweeping revisions of legal doctrine and overturning piles of precedent are just not unprecedented at all at this point. If you’re counting on them being modest about something like this, you’re backing the wrong horse. There is absolutely nothing to stop the conservatives from banning abortion if they get enough votes on the court. Nobody in the government has the power to just say “well I think the decision is wrong, so it won’t be applied.” Plenty of majority opinions written by Rehnquist had Swiss-cheese like rationales, but unfortunately, that didn’t/doesn’t (in cases where they still apply) make them any less the law of the land.
September 3rd, 2008 at 2:57 pm
Alito and Roberts both replaced relatively moderate judges and did not disturb the 5 votes that exist to uphold Roe.
What are you talking about? Alito, unlike O’Connor – whom he replaced – *would* vote to overturn Roe, and thus brought the right one vote closer to outlawing abortion.
September 3rd, 2008 at 3:06 pm
The opinion that a conservative Court somehow couldn’t or wouldn’t overturn any of the jurisprudence protecting abortion is what’s actually the silly conclusion to come to.
That’s like an “I slept through all my Con Law classes, and passed Con Law in law school and the Con Law section on the bar exam only by cheating” type of opinion to have about it.
September 3rd, 2008 at 4:14 pm
Well, I didn’t sleep through Con Law, and I passed the bar without cheating, but thanks for the ad hominem anyway.
September 3rd, 2008 at 4:26 pm
Matthew,
With respect to Roe v. Wade–overturning the decision would merely send the issue back to the states. I can’t speak for other Justices, but I know for a fact that Justice Scalia in an interview reiterated his legal view that without an amendment to the Constitution, the Federal government (specifically the Supreme Court and Congress) would NOT have the (legal) ability to “make abortion illegal.” Rather, because this issue is not specifically identified in the Constitution, it falls under the 10th Amendment which reserves the right of the states to ultimately make this decision. When one gets beyond the hyperbole, one realizes that if Roe v. Wade were outlawed tomorrow, there would be a majority of states (like NY and California for example) that would pass emergency measures to ensure that the “right” to an abortion is upheld in their domains. That may not sit well with people on either the religious right or the left, but that is the reality and consequently is consistent with what the founders intended.
September 3rd, 2008 at 4:30 pm
Unless I missed something really big, we’re not electing anyone senator-for-life in November. We’re going to have elections again in 2010 which, though unlikely, might give Republicans enough Senators to put another extreme right-wing judge on the Supreme Court.
September 3rd, 2008 at 4:36 pm
Bill, the 10th Amendment is moribund.
If McCain is elected, he WILL make abortion illegal. The key issue is agency. McCain will set in motion a chain of events that will obviously result in abortion becoming illegal (although not in every state).
He has said that he will appoint conservatives like Scalia to the Supreme Court. That sets in motion the chain of events: an abortion case will inevitably come before the Court, the new Court lineup will strike down Roe, and conservative states will ban abortion.
The possibility does exist that a Democratic Senate will reject McCain’s nominee, but that’s a pretty thin reed on which to base this entire argument.
September 3rd, 2008 at 4:45 pm
Has McCain ever said that “Obama WILL” do something as President? How about Obama will raise taxes? Obama’s plan lowers taxes for more people than it raises, so did Nyhan throw a fit about that?
September 3rd, 2008 at 4:47 pm
It would be ridiculously ironic, however, if John McCain, as hated as he is by the Dobson-lovers out there, ended up being the president who got Roe overturned.
September 3rd, 2008 at 4:59 pm
Bob,
Just how is McCain going to do that? Command the National Guard to enforce his will?
Again, let’s get beyond the hyperbole. Abortion is not going to be banned in the United States. Certain states through DEMOCRATIC measures will decide to ban abortion…No doubt. But the vast majority of states will keep it on the books. That will have nothing to do with a McCain Presidency (something which I have zero support for BTW).
As to the 10th Amendment being moribund…Unlike you, I apparently have greater respect for the Constitution of the United States. While I agree that few pay attention to the 10th Amendment these days (out of ignorance and their own selfish endeavors), I have not seen an Amendment that has effectively killed it. Just because people try to ignore the law doesn’t mean that it no longer applies. The 10th Amendment was designed to preserve the rights of the people to make their own political decisions in the face of a government with an opposite ideological bend. For years, liberals have chipped away at rights like the 10th Amendment only to see the possibility of a government coming to power that is willing to not only reverse that course, but apply their own extra-Constitutional beliefs.
As I said before, I neither support the religious right or the left on this issue (or any issue for that matter). I support the Constitution and the right of the people to amend it. Rather than crying over the milk that you obviously spilled, perhaps you should join me and do the same–especially if this nut McCain comes to power.
September 3rd, 2008 at 5:24 pm
Again, let’s get beyond the hyperbole. Abortion is not going to be banned in the United States. Certain states through DEMOCRATIC measures will decide to ban abortion…No doubt. But the vast majority of states will keep it on the books. That will have nothing to do with a McCain Presidency (something which I have zero support for BTW).
I’m not sure if you’re missing the point or being misleading intentionally. You concede that many states will ban abortion. In many more than perhaps you realize, abortion will also be made unavailable to certain segments of the population. The fact that elected legislatures would be passing these bills is hardly any comfort. After all, McCain is running for an elected office. If I’m worried about him taking action that will result in some women from being prevented from having an abortion, why would I care if there was another set of elections as part of the process? If there was a chance of civil rights legislation being overturned at the national level, would it be hyperbole to be concerned about the fate of southern blacks?
September 3rd, 2008 at 5:48 pm
Mpowell,
Given the 14th Amendment and the 10th Amendment (if you happen to be paying attention to them), then yes, it would be hyperbole to be concerned about the fate of southern blacks. That’s the beauty of a written constitution…Unfortunately, you have not grasped that and instead view the Constitution as a document that OUGHT to contain all of your desires. That makes you the same, or worse than the religious right and its no wonder that individuals like yourself are worried that nuts on the right will take such extra-Constitutional measures…You’ve given them the legal precedent (blowback) in which to do so.
Per your observation, I’m not here to debate whether or not there is a constitutional right to an abortion. Obviously I do not agree. What I am here to debate is that unless there is an amendment to the Constitution, abortion cannot be banned (through federal action) across the United States. You might not like the fact that these decisions might be left to individuals that don’t support your personal views, but that is what makes this country unique and great. I’d imagine that there are a whole host of issues out there that I support and you do not that are left to the states to decide. You should be thankful that there are Conservatives like myself that are fighting for your right to decide these very difficult issues without using the power of the federal government to decide them for you.
September 3rd, 2008 at 6:38 pm
Bill–
Read the relatively recent Lopez (1995) and Morrison (1999?) decisions. A federal law banning abortions would almost certainly be encompassed by Congress’s Commerce Clause powers under the analyses set forth in those cases*. Scalia was in the majority at least in Lopez, maybe in Morrison too (law school was a long time ago, and Lopez is the much more important case). He is lying if he says he would vote otherwise.
* Basically, the decisions say that if an activity is primarily commercial in nature — and it is hard to see how the provision of medical services by a medical professional could be deemed to be anything other than “commercial” — then it falls under Congress’s Art. I, sec. 8 powers. It traces back to the New Deal corn case (I forget the name — it basically says that an intrastate agricultural activity is “commerce” under Art. I, sec. 8 because it affects interstate trade and prices).
September 3rd, 2008 at 6:41 pm
Matthew,
For one thing, conservative members of congress regularly seek to pass federal legislation restricting reproductive freedoms (”partial birth” abortion bans, etc.) and I see no reason to think that would change if Roe were overturned.
That obviously doesn’t mean they would be any more successful under a President McCain than they have been in the past. Given that the Democrats are likely to gain seats in congress regardless of who wins the presidency, the prospects for an expansion of federal restrictions on abortion are dim. In any case, as Nyhan says, the statement that “as president, John McCain will make abortion illegal” is completely unjustified. A more accurate statement would be “as president, John McCain might try to make abortion illegal.” But accuracy is the last thing you are likely to get from political advertising.
September 4th, 2008 at 12:05 am
John McCain is very concerned about the Supreme Court and the next appointments. Read the Republican Platform. Gov Palin would be his pitbull for public opinion overriding the Congress and then there is the Supreme Court — waiting.
September 4th, 2008 at 11:11 pm
I hope abortion could get ban, or at least a law saying if you have an abortion you should be charged with murder.
September 9th, 2008 at 10:31 pm
The use of the word “will ” in the ad makes the ad a lie. He cannot make abortion illegal. All this other spinning is just that…spin….you know it, I know it. But rant on . What a great country we live in. We have the right to kill our own children just because they are too young. How disgusting.
September 9th, 2008 at 10:37 pm
How amazing is it that many of those who support abortion rights see it in the constitution though it is not even mention while those same people often do not see the right to bear arms even though that right is specifically spelled out.
____________________________________
“Whatever You Did Unto One
of the Least, You Did Unto Me”
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“It is a poverty to decide that a child must die so that you may live as you wish.” Mother Teresa
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