Personhood and the Presidential Debates

UFL Member Michael New has a short post, Abortion and the 14th Amendment, over at NRO. He describes GOP presidential candidates’ responses to the question of whether they would support legislation, under Section Five of the 14th Amendment that would restore legal protection for unborn children. Professor New notes that only Mitt Romney failed to endorse the idea, instead saying he was concerned that such legislation would “provoke a constitutional crisis” and he would, instead, seek to advance the cause of the unborn through judicial appointment. You can watch the debate on youtube in 8 segments here.

I am troubled by what this foretells about President Romney’s approach to life issues. There are three reasons I think his response is inadequate.

First, while the Roe Court said that it could not define when personhood began, and rejected Texas’ argument that the state legislature had implicitly done so, the Court did not address the possibility that Congress could define the unborn as persons.

Second, section 5 of the Fourteenth Amendment explicitly relies on Congressional action to give effect to its protections. While it is true that the Court does not look kindly upon Congressional attempts to interpret the Constitution in a manner different than a prior Supreme Court interpretation, see City of Boerne v. Flores, 521 U.S. 507, 536 (1997) (rejecting Congressional requirement that state statutes limiting free exercise to religion serve compelling state interests through narrowly-tailored means), the idea that legislation defining a previously undefined term in this constitutional amendment is hardly a call to abolish the federal judiciary. If a legislative definition including the unborn was passed and then challenged, this would provoke no more of a “constitutional crisis” than other instances where Congress asserts its full legislative authority and Court is asked whether they overreached.

Third and perhaps most importantly, it is hardly reassuring when a man who wants to be the leader of the free world seeks to avoid answering a serious political question with a verbal dodge that has no substance. Governor Romney has a very mixed record regarding his support of the unborn. As Professor New notes, this approach has been considered by many in the prolife community for a long time and reasonable minds can and have differed about its prudence. That said, no prolife commentator that I am aware of has suggested that the primary flaw in the approach is that the Court would consider it a constitutional crisis if a majority of Congress and the President believe that the unborn should be protected by the Fourteenth Amendment.

The Governor should have reasonably anticipated the question and either explained why he thought this approach was unlikely to achieve the end sought, while identifying an approach with a greater chance of success or forthrightly repudiated the end of obtaining legal protection for the unborn and accepted whatever political consequences ensued.

After the past three years, I think all Americans (regardless of party) are tired of political double-speak on issues they care deeply about, be it Guantanamo Prison or abortion coverage in a national healthcare plan. Romney’s answer evidences no serious thought about the issue of how we go about protecting the unborn, suggests a cynical attempt to persuade people that he is prolife when at best he just wants the issue to go away, or indicates an unhealthy deference to the judiciary. Regardless of which reading you give, none of these interpretations promise decisive Presidential leadership on the issue of abortion.

UFL member Christopher Wolfe discusses the expanding role of the judiciary in deciding key issues of American life in his book, That Eminent Tribunal. He took his title from a statement of Abraham Lincoln in his first inaugural address regarding the Supreme Court’s opinion in Dred Scott:

“At the same time the candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal.”

Perhaps Governor Romney should reread Lincoln’s address.

Teresa Collett

Teresa Stanton Collett is a professor at the University of St. Thomas School of Law in Minneapolis, Minnesota, where she teaches bioethics, property law, and constitutional law. A nationally prominent speaker and scholar, she is active in attempts to rebuild the Culture of Life and protect the institutions of marriage and family. She often represents groups of state legislators, the Catholic Medical Association, and the Christian Medical and Dental Association in appellate case related to medical-legal matters. She represented the governors of Minnesota and North Dakota before the U.S. Supreme Court as amici curiae regarding the effectiveness of those states’ parental involvement laws. She has served as special attorney general for Oklahoma and Kansas related to legislation designed to protect the well-being of minors and unborn children. She is an elected member of the American Law Institute and has testified before committees of the U.S. House of Representatives and U.S. Senate Committee on the Judiciary, Subcommittees on the Constitution, as well as numerous legislative committees in the states.