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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