Faking Right on Abortion

Policy made plain.
June 13 2000 3:00 AM

Faking Right on Abortion

Here's the deal: If George W. Bush will say publicly that he supports the Republican Party's official position on abortion, I will vote for him. But almost no one else will. The man in charge of writing the party's 2000 platform, Wisconsin Gov. Tommy Thompson, says he plans no change in the abortion language from 1996, and no public discussion about it either. He might as well go all the way and say he won't even read it, because I doubt even he agrees with it.

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The official position of the Republican Party is that women who have abortions should be executed. The platform doesn't say this in so many words, but it's not a fanciful interpretation. In fact, it's an unavoidable interpretation.

The platform says: "The unborn child has a fundamental individual right to life which cannot be infringed." No exceptions. And: "[W]e endorse legislation to make clear that the Fourteenth Amendment's protections apply to unborn children." It's the second bit that's the killer.

On one level, it's gibberish. Legislation cannot "make clear" the meaning of the 14th Amendment because it is a constitutional provision, whose official meaning is up to the Supreme Court, not Congress. Second, the 14th Amendment begins, "All persons born or naturalized in the United States …," so if anything is "clear" it is that the 14th Amendment's protections do not apply to the unborn. In fact, neither position is "clear," and a second reference to "any person" has sometimes been held to cover resident aliens. (Of course the most recent Republican platform also complains about judges who "invent new rights as they go along, arrogating to themselves powers King George III never dared to exercise.")

What is undeniably clear from the abortion language is that the Republican Party stands for the principle that fetuses are "persons" as that term is used in the 14th Amendment. Among other famous provisions, that amendment forbids "any state" to "deny to any person within its jurisdiction the equal protection of the laws."

In other words, according to the Republican platform, the law should treat the abortion of a 1-month-along fetus exactly like the killing of, say, a 5-year-old child. In every state it is considered a rather serious crime for a mother to hire someone to kill her innocent child. In states with a death penalty, this is just the kind of killing—premeditated, commercial, often remorseless, a betrayal of humanity's deepest bond—that qualifies for the death penalty.

Interpreting the "equal protection" clause has been the Supreme Court's main line of business for decades. What kinds of unequal treatment qualify? How much does the government have to be involved? But there are no complications here. Nothing could be more unequal than the difference between being executed and not being executed, and there's no ambiguity about the government's role.

So the abortion provisions of the Republican platform would give states a choice: Either execute women who have abortions, along with doctors who perform them, or don't execute other premeditated murderers and their hired gunmen. And there's really no choice because elsewhere in this steamy document the platform is quite enthusiastic about the death penalty, complaining repeatedly that it isn't used nearly enough.

Right-to-life Republicans generally say that while doctors who perform an abortion should be punished, the woman who procures one should be seen as a victim. Not only does this make no sense but under the language the party plans to readopt this year, it would be flatly unconstitutional. Even leaving aside capital punishment, a state could not send one woman to prison for murdering her child, do the same to a doctor who performs an abortion, but let another woman who scheduled an appointment, wrote a check, and had the abortion go free.

The full implications of the platform's abortion language also make a mockery of the GOP's "big tent" efforts to find room for pro-choicers in the party. The '96 platform precedes the abortion passages with some fairly desperate lemons-into-lemonade guff about being the "party of the open door" that sees "diversity of views as a source of strength" and is "committed to resolving our differences in a spirit of civility, hope, and mutual respect."

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