Religion & Law

In all the back-and-forth over the effects of an Obama election victory, there are two that appear to me to be crucial  yet largely or entirely undiscussed.

One is the effect of an Obama victory on abortion worldwide.  An international effort to export US-style (and worse) judicial activism is now paying off richly, especially in Latin countries. (I often teach comparative law in Latin America as well as in the USA.) Essentially, judges and other leaders there are being repeatedly (and falsely) told by UN-based non-judicial treaty enforcement committees that their countries are acting illegally when they protect life before birth. So far, the highest courts in Colombia and in Mexico seem to have gotten into line, reversing solidly pro-life past holdings in favor of full rights to abortion similar to Roe v.Wade. Argentina and perhaps Brazil may fall soon as well. While the Bush administration has somtimes sought to brake this process, an Obama administration can be expected to press the acclerator. (Austin Ruse and his group of analysts at C-FAM do an admirable job of reporting on these matters, although I don't believe they endorse or oppose candidates.)

Second, many commentators have pointed out correctly that the Obama-sponsored "Freedom of Choice" Act would greatly extend Roe to create rights, e.g., to abortion funding, partial-birth abortion, and abortion without parental interference. It would thus put an end to virtually all possible compromises on abortion, and (perhaps even worse) put an end to all legislative debate around the nation. There would be little point in speaking to our neighbors about community protection for life if we had been rendered utterly impotent.

But even if FOCA did nothing more than duplicate Roe, it would be very bad news in terms of public reason. It would sharply restrict or eliminate judicial debate as well as legislative debate. That is, for the last 35 years, the pro-life movement has been nourished by the hope that judges and justices (who are, after all, professionally committed to reason) will someday see the insanity of claiming that passage through the birth canal changes one from a merely potential to an actual living human being, as Roe insists. But once FOCA is in place, the Supreme Court will be precluded forever from reconsidering Roe. Courts will always strike down laws (like the new one in South Dakota) for violation of FOCA without having to reach the constitutional issues. In order even to hope that the Supreme Court would change its mind, we would first have to have a pro-life House, a 60-vote (filibuster-proof) prolife majority in the Senate, and a president who would not veto a repeal of FOCA -- all at the same time. Such an eventuality strikes me as quite a bit more unlikely than just someday getting more justices on the Court who are willing to reject what almost all scholars concede is the fallacious reasoning of Roe.

Even Robert George's otherwise devastating critique of Obama's impact fails to mention how Obama's FOCA could indefinitely entrench Roe v. Wade. Nevertheless, I concur with Mike Scaparlanda that Prof. George's new essay is absolutely necessary for conscientious citizens to read before voting this year. Here it is again: http://www.thepublicdiscourse.com/viewarticle.php?selectedarticle=2008.10.14_George_Robert_Obama's%20Abortion%20Extremism_.xml