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Bracing for the Election Print E-mail
By Hadley Arkes   
Monday, 27 October 2008

It was the best of times and the worst of times - oops: change that. It’s the worst of times, in this election, and some of us find ourselves shaking our heads in disbelief. The difference in moral perspective that now separates the two parties and their followers must be as deep as anything we have known since the Civil War. If the polls hold up, we would have the most radical pro-abortion President we have had since abortion emerged, in 1973, as an issue in our national politics.

We move then from Dickens to Bette Davis: “Fasten your seatbelts; it’s going to be a bumpy night.” The advent of Obama will be taken by judges, state and federal, as the green light to install same-sex marriage, as the courts have done in Massachusetts, Connecticut, and California. We can expect to see the experience in Massachusetts repeated and extended: The schools and every official agency will teach respect for this new state of the laws, with its approval of the homosexual life. Teachers who openly express their reservations, or their opposition to same-sex marriage may find that a ground for dismissal. Clergymen who raise moral objections may find themselves threatened by the laws governing hate speech and their churches or synagogues threatened with the removal of tax exemptions. For what is being sounded now in these circles of worship are teachings no longer “in accord with public policy.”

Obama has announced that he is determined, as president, to sign a new, enlarged version of the Freedom of Choice Act (FOCA). The aim of the bill is to enact, in a statute, those rights of abortion established in Roe v. Wade. But the new version is far more sweeping, for it would override many of the restrictions that have been enacted on abortion, including the bill to bar partial-birth abortions, or the Hyde Amendment to withhold the support of federal funds. An earlier version of FOCA did not pass even in the early 1990s, with a Democratic Congress and Bill Clinton as president. There may be some resistance even now, as the recent crop of professedly “pro-life” Democrats need to prove to their constituents that they really mean it. But a new, swollen Democratic majority, brought in with a sweep, may have votes to spare and a momentum that can impart conviction to the hesitant.

George W. Bush was reluctant even to raise the question of whether federal funds should be removed from hospitals and clinics that house partial-birth abortion or withhold care from a newborn who survives an abortion. But a new Democratic administration will not have the least reluctance to propose the removal of federal funds from hospitals that refuse to perform abortions. And you know who those are. Count on receiving many appeals to raise funds, in ever larger quantities, to lobby and litigate in defense of Catholic hospitals.

One possible redeeming point here is that the political class might be shaken from the line they have been all too pleased to set down: that these moral questions of abortion and marriage are the business chiefly of the courts. Karl Rove would point to the appointment of John Roberts and Samuel Alito as a way of saying, we’ve done our bit, don’t look to the elected leadership actually to take the lead on these issues. With the action moving to the Freedom of Choice Act, it should be clear now that the responsibility is squarely in the political arena. The Republicans in Congress will have to weigh in. But to their credit, they have always weighed in. It’s the Republican presidents who have been reluctant to take the lead in shaping the public argument and directing a scheme of legislation. The Republican presidents have held back because they have been keenly aware of the divisions on abortion within their own party - and, it must be said of the Bushes, within their own families. That reluctance continues to this day even as these issues continue to be, for the Republicans, a net winner. My hunch then is that the passage of FOCA now would not jolt the Republican political class to a new level of awareness and energy. It is more likely to be taken as a sign that the issue is finished, that there is no constituency out there powerful enough for bringing it back.

And yet, one point of irony is that, in the midst of this wreckage, the Supreme Court may be, as it is, the one enduring force for the pro-life cause. If the replacements to the Court come from the liberal side, we would still have the coalition of five justices who upheld the federal law on partial-birth abortion. That coalition included Justice Kennedy, who has been a disaster along many dimensions. But he has been willing to be part of a majority that has established a new cast of decisions on legislation dealing with abortion. What the Roberts Court established with the case on partial-birth abortion was that it was willing to treat seriously - and sustain - legislation that placed restrictions on the surgery of abortion. Those acts of legislation will be coming in a train of cases from the states. And there is reason to expect that Justice Kennedy will stay with the wing of Scalia, Thomas, Roberts, and Alito in sustaining them.

That piece of news, offered in consolation, may be taken as a measure of how bad the times may be: that the conservatives come to be grateful - and come even to hope - for the enduring presence of Anthony Kennedy. Is there any wonder that, with the polls tightening in the closing moments, we cling even to a sliver of hope.

Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College.

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Comments (7)Add Comment
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written by James the Least, October 28, 2008
I don't understand what's so hard to grasp about this and why it's taking so long for Americans to come around: we are not one people. Out of many, we have become two. This case is not like slavery, which revolved around one moral issue. Today we sit on two sides of a metaphysical divide which cannot ever be bridged, and consequently we cannot live together. Period. We must separate, else it's only a matter of time before we are forced to either take up arms against our antagonists or submit.
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written by Coilette, October 29, 2008


Come on Professor. The NUMBER ONE problem these last eight years has not been the president. It has been the current nominee, John McCain, his Gang of 14, and other squishy senators who have obstructed any real gains anywhere, including on the judicial and pro-life fronts. The same John McCain whom some in these pages insisted we follow because he was a sure thing winner.
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An allegory for our time
written by Alessandro, October 29, 2008
Interesting: As I was reading your article, above, I was reminded of Paul Lake's recent novel, Cry Wolf -- In the venerable tradition of Animal Farm, Cry Wolf tells the tale of Green Pastures Farm, a once democratic and distributionalist society that becomes corrupted by unbridled Capitalism and political correctness...
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written by Richard Imgrund, October 29, 2008
Interesting reference to the 'surgery' of abortion. If abortion were medical care, 'surgery' as it is generally understood, it would be like any other surgery: no questions about informed consents or parental notification of minors, no questions about informing the legal authorities about suspected rape or abuse. Yet these are all major political battles whenever any of them are proposed. What other 'surgery' is treated like that?
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written by Roberta Young, October 30, 2008
"My hunch then is that the passage of FOCA now would not jolt the Republican political class to a new level of awareness and energy. It is more likely to be taken as a sign that the issue is finished, that there is no constituency out there powerful enough for bringing it back." You are correct on this. In Canada a Conservative government headed by a self-professed pro-life leader refuses to allow any pro-life bill to be brought forward. They are defeatist on this issue.
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written by Steve J., November 03, 2008
The real reason that we have had legal abortion in this country since 1973 is eight years of failed economic policy. In all seriousness, I cling to that sliver of hope that God's hand will lift the veil of deception, so that good people can see clearly to do the right thing tomorrow.
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a usa citizen
written by Veronicas Shumpert, May 15, 2009
Do you trust or believe in God - if so Christ will reign from the heart with the mind in operation from the creator so we must observe and do what God said from the beginning if not be found as in whom he says we are, also by works yet don't know how bless we are and don't realize the trouble we are in today since the flood has been dried from the land and we walk upon it today. Seek the Lord as we aught and quit thinking how we think it should be,. In the love of God by Christ Jesus.

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