Republicans and Abortion: A Brief History
By Michael Kinsley
"The question of abortion is one of the most difficult and controversial of our time." That sweet reason is from the 1976 Republican platform, three years after Roe v. Wade, which ruled that a woman's right to abortion is protected by the Constitution. The platform went on in the same moral-relativist vein. "There are those in our Party who favor complete support for the Supreme Court decision," and those who want that decision "changed by a constitutional amendment." Just to leave no one out, it went on to note that "others have yet to take a position" while others still fall somewhere in between.
It called for "public dialogue on abortion," and then, in a surprising and unexplained reversal, endorsed a "constitutional amendment to restore protection of the right to life for unborn children."
In 1980, the platform's abortion plank conceded "the complex nature of its various issues" and "differing views on this question among Americans in general." Nevertheless, "we affirm our support of a constitutional amendment to restore protection of the right to life for unborn children.
By 1984, "The unborn child has a fundamental individual right to life which cannot be infringed. We therefore reaffirm our support for a human life amendment to the Constitution, and we endorse legislation to make clear that the Fourteenth Amendment's protections apply to unborn children.
In addition, the 1984 platform called for "the appointment of judges at all levels of the judiciary who respect traditional family values and the sanctity of innocent human life.
Ever since then, with various rhetorical flourishes, the platform has contained the same four elements: 1) the unborn child has a "fundamental individual right to life which cannot be infringed"; 2) endorsement of a "human life" constitutional amendment; 3) a call for judges who "respect human life"; and 4) new laws to "make clear" that the fetus is a "person" under the 14th Amendment. Paul Ryan has co-sponsored such legislation, declaring that the fetus is a "person."
So it's a bit puzzling why people are so shocked and dismayed that this year's platform contains no exceptions for rape or incest or to protect the health -- or even the life -- of a woman who chooses to have one. The anti- abortion plank of the Republican platform has never contained an explicit exception for any of these situations.
The Human Life Amendment could mean anything, because it doesn't exist yet. It could contain exceptions for rape or to save a woman’s life or anything else. But the 14th Amendment is another matter. It is the constitutional provision that guarantees “equal protection of the laws.” It was enacted after the Civil War for the benefit of the freed black slaves.
Courts have been struggling with it ever since. Almost everything the government (or anybody else, for that matter) does is a discrimination of some kind. What other groups does the Constitution protect? Obviously the laws cannot treat criminals equally with the innocent, and must be able to discriminate between the old who collect Social Security and the young who pay into it. And so on.
If the 14th Amendment’s protections apply to unborn children, this essentially means that the government cannot discriminate between the born and the unborn -- that is, between you and a fetus. It certainly cannot allow a fetus to be killed just because it is the result of rape.
In fact, if a fetus is a "person" entitled to "equal protection of the laws," the state would have to prosecute a woman for obtaining an abortion exactly as it would prosecute a mother who murdered her young children. That’s equal protection of the laws. States that allow capital punishment, in which a woman who procured and paid money to hire a killer to murder her children could be executed, would have to follow the same policy regarding a woman who procured and paid for an abortion.
James Bopp, a Republican activist lawyer who wrote the platform’s anti-abortion language, claims that it doesn’t preclude exceptions for rape, etc. He says there are “numerous exceptions” to the right to life, even for people who have been born. For example, if a woman’s life is in danger, “it’s analytically close to self-defense” and self-defense can be justifiable homicide. Or you can be excused for shooting a fleeing felon, he notes. Of course the fetus, if it is to be considered a person, is an innocent person, and there is no “justifiable” reason to kill an innocent person.
Does the Republican Party actually believe that women who have abortions should be treated like criminals, or at best as committing “justifiable homicide”? Of course not. But that, whether they like it or not, is the necessary implication of the obscure language in the party’s platform.
(Michael Kinsley is a Bloomberg View columnist. Follow him on Twitter.)