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Obergefell, Amendment 8, and Other Cautionary Political Tales
Last weekend, Ireland voted in an overwhelming fashion to repeal Amendment 8 of its Constitution, which forbade abortion. As with everything else in our totemized political culture, this has been hailed by those on the left and bitterly lamented on the right. The whole situation gives me the sensation of déjà vu; as if somehow, we’ve been here before and the same script is stuck on repeat in the iPod of our political lives.
That sense of repetition is due to the fact that every time some culturally significant decision arrives, the same cast of characters wheel out their soapboxes to either rend their garments or crow over their supposed enemies’ defeats. The Obergefell decision was one such obvious flashpoint. It is a decision which I disagree with on the legal merits, but one which contains a larger lesson that political conservatives can learn from. Things didn’t have to end up this way.
Let’s start by looking back a couple of decades, specifically the 1990s. In 1995 Newt Gingrich became the newly minted Speaker of the House, with Republicans having just swept into control of both houses of Congress. They were set to embark on a program of high-minded and ultimately, quite successful political reforms. Conservatives were really feeling their oats, and one of the issues I recall being live in that era was the question of a Constitutional Amendment defining marriage as a union between one man and one woman. This topic was campaign gold for Republicans for the better part of a decade, who frequently ran under the banner of “God, Gays, and Guns,” yet they infrequently did anything about these particular items at that time.
Nobody got serious about the Federal Marriage Amendment until it was brought to the House for a vote in 2002, (by a Democrat, strangely) by which time the political will to do something as tough as “Amending the Constitution” had already begun to ebb — if it ever existed in the first place. I would encourage you to read the Wiki article on the history of the Marriage Amendment, as it’s fascinating all on its own. Senator Wayne Allard of CO (my Senator at the time) did yeoman’s work, following the proscribed procedures and attempting to carry out his constituents’ will. (Lest you think I’m being overly critical of the Republicans, the article also puts in relief the calculated political cowardice of many feckless Democrats — most notably John Kerry and John Edwards, who skipped cloture votes in the Senate on the Amendment in order to avoid having to come down on one side or another of the issue. They were, and remain, chicken livers.)
I tell you this story because it is a tale of both hubris and overreach on the part of Republicans and Conservatives which led ultimately to that moment at the Supreme Court where the dam burst wide open with Obergefell. It seems clear in hindsight that Amending the Constitution to explicitly prohibit gay marriage was likely a fool’s errand and a potential millstone which would have hung around the necks of many involved. However, the strict denialist mentality which animated the impulse in the first place didn’t account for the notion that a more balanced approach to the question could have ultimately protected the interests of all involved and provided Republicans with political cover on the issue for generations to come.
What do I mean by that? Forward-looking politicians could have very easily supported both the Federal Marriage Amendment and the creation of a narrowly tailored, legislative privilege for homosexual civil unions. This would have had the effect of preventing the Masterpiece Cakeshop kerfuffle, protecting practitioners of faith from coercion while giving bourgeois gays the ability to have their unions recognized (in the eyes of the state) in the same fashion as heterosexual couples. Providing a legal outlet for such positive desires even as you bar the other door would have lowered the stakes on the Constitutional Amendment defining marriage, likely allowing it to proceed towards ratification. Yet, the concept of “tradeoffs” and “compromise” seemingly hasn’t entered into people’s political thought processes for some time. In the final analysis, the urge for absolutism (and to be fair, political grandstanding) turned out to be a costly oversight when the cultural and political ground ended up shifting under Republicans and the right.
That brings me to the fight over Ireland’s Amendment 8. Amendment 8 has been on the books in Irish Law since 1983, although the act of Abortion has been punishable under law there since 1861. My own views about abortion are complicated, and essentially boil down to the idea that a State which is powerful and knowledgeable enough about you to know that you’re in the early stages of pregnancy is a State which is in possession of far too much information about the most private aspects of your life. As lamentable as we might find abortion to be personally, either due to religious teaching or personal abhorrence, we would be wise to contemplate the potential consequences of inviting the state to intrude into people’s affairs at that level of granularity.
Clearly, conservatives in Ireland were not swayed by this sort of argument of practicality when they passed Amendment 8, and therein I think lay the seeds of the flood which overwhelmed them last week. Amendment 8 was repealed by popular referendum via a final count of 67/33 percent; a neat 2:1 defeat for pro-life advocates. It is also clear that this was about the worst outcome imaginable for such pro-life advocates, as the gates have essentially been cast wide open.
Turning back to America, one wonders: What might happen if the mechanics existed to hold such a plebiscite here? Based upon available data, the results would likely come off even worse. Gallup tracks this exact set of questions rather closely and has for years. The results are both sobering and enlightening.
Of those asked “Do you think abortion should be legal under any circumstances, legal under certain circumstances or illegal in all circumstances?” the answer “legal under certain circumstances” earned 50 percent of responses. “All circumstances” earned another 30 percent. All told, that means some 80 percent of Americans questioned want there to be some provision for abortion, even while half of the same group questioned view the practice as being morally wrong. The relative constancy of the percentages of answers involved is somewhat remarkable but indicates the relative durability of people’s adherence to their stated positions.
Herein lies the lesson for Conservatives: Americans are obviously of two minds about Abortion. Although many view it as immoral, a considerably higher quantity nonetheless want the practice to remain at least partially legal, particularly at the earliest phases of pregnancy and in situations where the mother’s life is at risk. Advocacy for a straight-up ban on abortion is, therefore, a potential political death sentence for most politicians due to this rather large split in the American mind. Therefore, it seems likely that the only politically feasible outcome is to cobble together a coalition of those in favor of a ban and those in favor of restriction. This is a union which has borne considerable fruit, such as the 20-week abortion ban, born alive protections and the potential defunding of Planned Parenthood.
Indeed, moral suasion has done considerable work in reducing the number of abortions in this country — the rate has fallen by half since the 1980s — and this should be viewed as an unalloyed good. But we should not for one second view that good as being the diametric enemy of the perfect America which some people see in their mind’s eye.
This is the mistake American Conservatives made with Gay Marriage, with the result being the rancor and unrest we’ve seen following Obergefell. Irish Conservatives may have made a similar miscalculation with Amendment 8.
The left is guilty of this impulse as well on a variety of issues — the question of Guns comes immediately to mind — and we’ve seen how that has gone for them. Democrats are routinely drummed on the issue of firearms because they’re beholden to the most extreme voices on their side of the aisle on that issue. Could a pro-gun Hillary Clinton perhaps have won the 2016 election? I’m glad they’re too foolish for us to have found out.
Since then, the left’s extreme and shrill attitude towards the President and his Administration has driven ever larger numbers of people into his camp. Their example proves that succumbing to that sort of absolutism is the surest road to political perdition.
We would be better off learning from their object lesson than retaliating in kind.
Published in Politics
Not really complicated. Just couched in libertarian gibberish.
I try not to be someone who only “likes” posts with which I agree. This was a good test, assuming that I’m following your line of thought. Perhaps more later when I’m feeling more argumentative, instead of just hungry
I’ll be happy to talk about it.
If ever there’s a reason for the state to involve itself in one’s “intimate” life, it’s to stop one from committing violence against one’s offspring. Even a doctrinaire libertarian should be able to agree with that.
I think that you have this right, Shawn. Instead of trying to minimize the numbers of abortions, we spit in the wind trying to get government to enforce our “zero tolerance” theology. George W. Bush was asked what it would take- how many changes on the Supreme Court- to end abortion. His answer was that we needed changed hearts more than changed judges, and he was right.
The most important thing in the abortion debate was not overturning Roe, it was getting the pre-born baby recognized as a baby. And the means was ultrasound imaging plus persuasion. Once it is obvious to all that we are talking about a baby, then we can discuss the scope and timing of your “right” to kill it. The most important thing pro-life people can do is fund a company to produce an imaging ultrasound device that sells on Amazon for $100.
And, in the end, God gives life, God protects the soul regardless of what evils we commit. Having the government established as the enforcement agency for zero tolerance gives it too much of the wrong kind of power.
As I recall, many states did recognize civil unions for same sex couples ahead of the ruling. But that wasn’t good enough; it was considered in the same vein as “separate but equal”. As quoted in the Wikipedia article on civil unions, a civil union is a legal construct that would “withhold something precious from gay people”. So I’m not sure that recognizing or supporting gay civil unions more widely would have changed anything.
Zero tolerance.
Let me start here.
I agree with what I perceive to be the overall theme–always be thinking two to three moves ahead and be intimately aware of the consequences of radical change.
I do not agree where it appears that you’re countenancing compromise. IMO, had there been some recognition for civil unions, we would still be pretty much where we are today. A marriage amendment would have been infeasible under any circumstances, so that wouldn’t have happened, and an attempt to use civil unions as a wall would have been steamrolled in short order. The activists would not have settled for it. The lesson is that, if you’re not going to play the absolutist game, at least recognize that those on the other side do not compromise in the long run.
Which is why DOMA came about – if states experimented it wouldn’t be a backdoor national legalization based on Full Faith and Credit, but there wasn’t sufficient votes for anything like an amendment.
Obviously, we can’t know. However, taking a more conciliatory tone back then might have kept more people on our side and essentially punctured the desire that many on the left had to push the fight all the way to the Supreme Court.
Politically, it was a virtue for Republicans to be viewed as tough on gays. That embittered them unnecessarily against conservatives.
Zero chance.
May I ask what you think of the Gallup data on abortion and why only about 20% of people say they want abortion banned? How can that ever be a winning political coalition?
No, we need to focus on reduction and restriction. That’s the best we can hope for.
I have seen very different polling data on that.
By all means, provide us with it.
Well sorry, but I didn’t write down a link. But numbers showing that a large majority are against late term abortion, or even anything past the first trimester. Applying the poll results I saw would result in radical changes to existing law. That’s the reason I noticed them in the first place.
I’ve seen too many fishy results. At this point, I see all of it like this:
There is no compromise with the Left. Abortion is sacred to them. The point of Gay Marriage is to crush Christians under Leftist boots. Conservatives told the libertarians than the gay marriage decision was going to be used against religious people, but they were called alarmist at best, and bigots at worst.
I still can’t believe they made you a contributor.
You may ask. I think that’s a tendentious way to characterize the data. And since when has the left relied on polling data or political coalitions to promote either gay marriage or abortion? “Give them most of what they want and then pray they don’t go to the courts for the rest” doesn’t strike me as a great strategy.
Removal of restrictions on abortions was imposed on us by the court. When that nonsense decision is overturned the states will sort it out differently as is appropriate; some of them will probably get it right, which will be demonstrated over time. The campaign to push gay marriage stampeded the right and true to form they played right into the left’s narrative, making it a national issue they could play with their instant mob.
There has to be some bit of truth underlying politics and up until Obergefell even BHO and HRC knew marriage to be between a man and a woman. It is not hubris or overreach to stand for truth. Marriage wasn’t redefined with Obergefell, it was de-defined. If same-sex couples want to fight for legal protections and benefits, let them fight for that – but why must they insist on messing with the institution of marriage?
It is the same with abortion. Abortion takes a human life – science tells us that.
Ah yes, the right to privacy. The right that trumps the right to life.
There is no compromise on abortion.
And it seems to me there is no compromising with today’s left on moral issues. To them, compromise means my way or the highway. They have gone back to paganism.
NASA Scientist Alexander Tsiaras presents Conception to Birth: Visualized …
“The magic of the mechanisms inside each genetic structure are saying exactly where that nerve cell should go … the complexity of these, the mathematical models of how these things are indeed done are beyond human comprehension.”
Science tells us it is indeed a new and separate life. The new heart beats before Day 32.
And that we should marvel at the ‘construction sets’ divinely given us by our Creator God … and that knowing this, we should share and protect this gift to our last breath on earth. Without compromise.
How can this be squared with the notion of limited government?
I’m not saying that we should compromise with the left as much as we need to recognize political reality and make common cause with the 50% of people interested in agreeing with us most of the time.
Surely you agree that fewer abortions is better than more; but the reality is that “zero” simply isn’t on the menu.
I know… I’m pretty stoked about it. Thanks for the encouragement!
“This post was promoted to the Main Feed by a Ricochet editor at the recommendation of a Ricochet editor.”
I think what this analysis overlooks is that it is the left that is the agressor in these culture wars. The abortion debate in Ireland and the US is quite different in that both are starting from polar opposites of the possible policy prescriptions.In Ireland, with the initial condition of an absolute ban on abortion I would question whether if a conservative government had eased the restrictions by providing exceptions to the ban would have appeased the other side or would it have been a case of letting the nose of the camel into the tent. In the case of the US, the pro-life side should grab whatever we can get under the same theory.
As for SSM and Obergerfell and rancor. I think the rancor has eased since the decision.
I kind of think that and I think the marriage advocates should use the good feeling toward the institution of marriage on the elitist left (now that they no longer associate marriage as “an oppressive institution of the patriarchy”) to push for the reform of Divorce laws. Do you think we could move to weaken no-fault divorce now that gays can marry too?
I think protecting the right to life is one of the fundamental requirements of a limited government. If we can’t protect life, why have a government at all?
I do agree that fewer abortions is better than more and am fully in support of laws that limit abortion, but I will never cede ground to the left in this argument. Never.
As @zinmt pointed out, the left is the aggressor in these fights. We have the truth on our side with regard to both of these issues and that is why they fight so aggressively and dishonestly.
I am not naive about political reality and this is why I think we have to fight as aggressively as they do, or they will keep chipping away at the culture and the political reality will continue to careen into the ditch.
A brand new heart created in less than a month could only come from two people of the opposite sex – it is both a mystery and a miracle – to stop it is murder.
No, I think that’s even less of a possibility now. Why should we insist any longer that civil marriage (as distinct from sacramental marriage) be either permanent or exclusive? What public purpose is served by doing so?
Agreed. Which is why the right’s aim has been to remove this from the Supreme Court’s court and to allow states to regulate as they see fit. We are responding, not imposing.
I think Majestyk has a point worth discussing, here. It is possible and, for the time being, necessary to separate the moral argument against abortion from the legal status of abortion. That is: at the moment, abortion is legal and likely to remain so. Even if Roe is overturned, abortion is likely to continue being offered on demand in at least some states, and with minimal restrictions in others. Moreover, the same technological advances that will allow us to order $100 ultrasound machines from Amazon will find our neighbors ordering $100 DIY abortion kits as well.
On the other hand, laws against any practice does signify a culture’s opposition to a given behavior. Prostitution is similarly difficult to investigate and prosecute (particularly in a society that has decided that women are as interested as men in random hook-ups with strangers) but laws against it nonetheless convey the message that there are things in life that ought not to be for sale.
The law is not, however, the only (or perhaps best?) vehicle for cultural communication. Adultery is still frowned upon even if it’s no longer illegal. It’s not illegal for me to throw returnable soda cans in the trash, but it would earn me some dark looks if my neighbors caught me at it. And millions of Americans continue to believe that abortion is wrong even after forty years under a law that says, in essence, “no it’s really fine…”
So…I’m conflicted. I can no longer call myself pro-choice. I am now pro-life, and against abortion. Since my mind was changed here at Ricochet, perhaps it would help to know what it was that made that change happen?
First, what did not help:
Someone saying “abortion is murder.” Or saying “zero tolerance.”
Someone referring to pregnancy as an “inconvenience.”
Contemptuous suggestions along the lines of “she should hold an aspirin between her knees…”
Here’s what did help:
Math.
All birth control methods are known to fail even when used correctly. A method that is successful 99% of the time by millions of Americans will still result in thousands of unintended pregnancies.
Late term abortion is much more common than we are led to believe. Even if “only” one or two percent of abortions (a very low estimate) are performed after the first trimester, that means ten or twenty thousand late-term abortions every year, most of which are not occasioned by the discovery of severe fetal anomalies; women report financial problems and relationship failures, not hydrocephaly or even Down’s.
Science.
Asking the question “how do they get the second or third trimester fetus out of the woman’s body?” and having that question answered.
Recognizing (duh) that a pregnant woman isn’t being forced to become a mother but is already a mother; her baby already exists.
Seeing ultrasound videos of babies in the womb. Most recently, one of an 8 week old fetus not just twitching a little, but actually jumping and kicking.
History.
That Dr. Bernard Nathanson, one of the founders of NARAL, admitted that he made up the numbers on the frequency of abortion in America and the mortality and morbidity rates for women having illegal abortions
That aborting Down’s Syndrome babies bears a strong resemblance to mid-twentieth century eugenics programs, and reflects a similarly pinched and stingy attitude toward what (and who) counts as a worthwhile human life.
Kindness:
Learning about what Crisis Pregnancy centers do
Learning about alternatives —Prenatal Hospice, for example—for women carrying babies with life-threatening anomalies
Having pregnancy described both more generously and more accurately as a serious (if common) sacrifice that ennobles and empowers rather than enslaves women
The obvious, demonstrable concern for the already-born so many of you show in so many ways (not just in arguments about abortion) that demonstrates the falsity of the claim that Right To Lifers only care about unborn persons.