Tuesday, September 5, 2023

Part I

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A Nation Divided Against Itself on Abortion Cannot Stand: The Case for Federal Protection of Persons in the Womb Under the 14th Amendment

Jamelle Bouie is an influential columnist for the New York Times. He’s a man of the left, having written for The American Prospect and The Nation before joining the editorial and opinion team at the New York Times. I do not find myself often in agreement with him, and if anything, that’s an understatement. But just in recent days, he has written a piece that compels our attention and at least our partial agreement.

Now, in this case, the word partial is entirely necessary, but let’s look at the piece. The headline is this, “What The Contradiction of Slavery Tells Us About Abortion Rights.” Now, Jamelle Bouie is not the first person to draw a link between the question of slavery and the question of abortion. Both of them have directly to do with the question of who is a person and who has human rights, and how must a government take account of those constitutional rights. Those basic human rights that are even prior to the constitution natural rights.

But these arguments have been made from both the left and the right, and when it comes to abortion from those who have the pro-abortion side and from those who take the pro-life side. In this case, Jamelle Bouie is decidedly taking the pro-abortion side, but he makes an argument that really should compel our attention.

His argument is based in this. If you go back to the period before the Civil War and then look at the Civil War itself and then look at the settlement during the period of reconstruction that came thereafter, the big lesson is that, state’s rights was not enough to handle the question of human dignity as it related to the legal and constitutional question of human chattel slavery.

Now, the issue of state’s rights better described as the issue of federalism, is extremely important to our constitutional order and is of particular importance to conservatives. Unless, there is a power expressly assigned to and delegated to the federal government, those powers should, according to our Constitution, reside in the states.

But this is where particularly after the Civil War, the United States government made very clear and specifically in the 14th Amendment to the US Constitution, that the power of defining and protecting a person in terms of the Constitution, that was a federal power. It could not be usurped by the states.

That was not the only issue in the Civil War, but it was a central issue in that war, and it was understood by Abraham Lincoln, the president of the United States, in his famous house divided speech, when he said, “A house divided against itself cannot stand. I believe this government cannot endure permanently half slave and half free. I do not expect the union to be dissolved. I do not expect the house to fall, but I do expect it will cease to be divided. It will become all one thing or all the other.”

That became one of the most familiar and indeed iconic statements by the late president. And it was at least a partial explanation for why the north fought the Civil War and in particular why the union was defended as the union. But you’ll notice the precipitating issue, there really was slavery in the sense that Lincoln was defining it as the impossibility of a union that was half slave and half free.

Now, at the time, you had a vigorous argument over that, but at this point, I think it is politically and constitutionally safe to say that even the most ardent federalists do not want to repeal the 14th Amendment when it comes to making very clear, that slavery is unconstitutional–this means human chattel slavery, race-based slavery in particular, and that the rights of citizens as persons are recognized by the Constitution without respect to race.

Now, one of the big concerns in the aftermath of the Civil War was whether the federal government would become Leviathan, and basically overtake almost all of the powers that could be grabbed by a government, without respect to whether or not there had been an explicit constitutional warrant.

There are still issues there, of course, to be debated. And indeed some of these issues are what come before the Supreme Court with rather increasing regularity. And the reversal of the Roe v. Wade decision of 1973, that reversal of course, came last year and the Dobbs decision, that basically returned the question of abortion to the states.

Now, Jamelle Bouie is pointing to that and he says, that is virtually just like the division among the states on the question of slavery. This time it’s not slavery, this time it is to use his argument, a woman’s reproductive autonomy or woman’s right to choose. He mentions restrictions on abortion undertaken in states like Alabama and then in Texas and Idaho, some of them relating to the right to travel, indeed to secure an abortion and then Bouie writes, “And they aren’t alone; lawmakers in other states, like Missouri, have also contemplated measures that would limit the ability of women to leave their states to obtain an abortion or even hold them criminally liable for abortion services received out of state.”

He then writes this, “The reason to compare these proposed limits on travel within and between states to antebellum efforts to limit the movement of free or enslaved Black people, is that both demonstrate the limits of federalism when it comes to fundamental questions of bodily autonomy.” Just in case you’re wondering where he is going, he answers that, “It is not tenable to vary the extent of bodily rights from state to state, border to border. It raises legal and political questions that have to be settled in one direction or another.” There he is basically channeling Abraham Lincoln.

He asked the question, “Are women who are residents of anti-abortion states free to travel to states where abortion is legal to obtain the procedure? Do anti-abortion states have the right to hold residents criminally liable for abortions that occur elsewhere? Should women leaving anti-abortion states be considered presumptively pregnant and subject to criminal investigation, lest they obtain the procedure?”

He concludes, “Laws of this sort may not be on the immediate horizon, but the questions are still legitimate. By ending the constitutional guarantee of bodily autonomy, the Supreme Court has fully unsettled the rights of countless Americans in ways that must be resolved. Once again, a house divided against itself cannot stand.”

So there he, directly cites Abraham Lincoln. “A house divided against itself cannot stand.” You could not have a union that was half slave and half free. His extension is you cannot have a union that is half abortion and half pro-life. Using the terms just as generously as I can.

Well, I began by saying that I agree in part, but disagree largely with Jamelle Bouie’s argument. Where I agree in part is where he makes the point that, this settlement where you have pro-abortion states and pro-life states, states in which you can virtually abort a baby in the womb right up until the moment of birth and states that are putting very significant restrictions on abortion, you cannot have a situation in which that endures forever. I don’t think either side in this controversy believes that this can endure forever.

I will say as a constitutional conservative that this is a far better situation than the usurpation of authority by the Supreme Court in the Roe v. Wade decision, which was basically just invented out of thin air by progressivist ideology. It was not in any way justified by the Constitution of the United States.

But where I differ with Jamelle Bouie, and this is the massive divergence, is he wants to see the entire union pro-abortion. I want to see the entire union pro-life. Those are two incommensurate hopes and two incommensurate outcomes. But I do believe over time, one or the other development will happen. But there’s something else here that is behind the argument, more importantly behind the disagreement I have with Jamelle Bouie. Jamelle Bouie seems to believe that the right position is somehow, and he doesn’t make much of an argument here, that a woman ought to have the right to secure an abortion.

Now, I’m just going to say that I believe that the historical occasion he points to which is the Civil War, what came before it and what came after it, that actually sets the stage for our understanding of why the federal government should recognize every unborn child, as well as every living person outside the womb as being a human person fully coming under the protection of the 14th Amendment to the US Constitution.

Writing back as the Dobbs decision was about to be handed down in June of 2022, Professor Robert P. George at Princeton University and Josh Craddock, who’s with the James Wilson Institute there at Princeton, they made an argument in the Washington Post.

They wrote this, “The 14th Amendment ratified in 1868 extended the equal protection of the laws to ‘any person.’ Although the court in Roe,” they write, “rejected the argument that the fetus is a person protected by the 14th Amendment, the majority’s reasoning was notoriously poor and its conclusion incorrect.” They go on to conclude, “The historical evidence is overwhelming, that at the time of the amendment’s ratification, the word, person had a settled public meaning that included any child living in the womb.”

So what does that mean? Well, I believe it means that in the Roe v. Wade decision in 1973, the Supreme Court actually directly violated the Constitution of the United States in the text of its 14th Amendment. I believe that that 14th Amendment, which as Professor George and Mr. Craddock point out was ratified in 1868. I believe that that 14th Amendment clearly recognizes and offers federal constitutional protection to human lives both inside and outside the womb within the borders of the United States of America or within the reach of its constitutional protections.

That is to say, I believe that the Roe v. Wade decision was not only horrible law in terms of constitutionalism, I believe it was a direct refutation and contradiction to the 14th Amendment of the United States Constitution. I have signed on to statements to that effect along with Professor George and others. I think it’s very important for us to recognize that the 14th Amendment to the United States Constitution with respect to personhood, and that is to say the equal protection of the laws to any person that directly covers the person inside the womb.

Now, let’s go back to Jamelle Bouie’s argument for a moment. What is he seeking to set up? He doesn’t actually get to a proposal about how to settle the issue, but he clearly is looking for a federal solution that would to use his logic, protect a woman’s right to obtain an abortion. That means at the expense of the person within her. And expense in this case, means the expense of that person’s life. That is the very thing the Constitution in the 14th Amendment was seeking to prevent the separation of person and the right to life and other natural rights, not granted by the Constitution, but respected by the Constitution.

So to sum up in terms of our consideration of this argument by Jamelle Bouie, the New York Times, he is right that long-term, this division will not stand. It will not stand because you really can’t have a nation, you can’t have a union divided on such a fundamental issue.

The federalist in me would like to believe that most issues can be handled by the states, but nonetheless, it turns out that the issue of human personhood, that is not something that can merely be left to the states, and I think both sides in this controversy understand that, you are talking about whether or not an unborn child is a person, and if a person has all the rights that would come to a person and deserves the protection of those rights, inside and outside the womb. That’s just how basic this controversy is.

I’m also, by the way, very glad to see that there is an increase in the number of conservative constitutionalists who are understanding the argument made about human personhood in the 14th Amendment. That is very encouraging. Of course, it takes place against the backdrop of very discouraging developments. If indeed there were to be, for example, a democratic majority in both houses of Congress that could pass such legislation and a Democratic president to sign it into law, that would set up not only a very lamentable political situation, it would set up a context disastrous for human liberty and indeed for human life.

But we are going to have to give attention in days ahead, to what’s going on in terms of a moral and cultural map of the United States. It’s not just red and blue. That’s where, of course, so many people are absolutely fixated because of the politics. That’s not unimportant, but we are looking at the fact that on the question of abortion, at least for the unborn child, just about everything rides on whether or not that unborn child is in a pro-life state or a pro-abortion state.

If that child is born in Iowa versus say, California, you’re looking at two very different moral universes. Same thing true, if you’re looking at Alabama or New Jersey. And the question is of course, in terms of our constitutional order, if that’s tenable over time? But as we’re going to see in days ahead, you add the transgender issue to that, and red and blue, get very red and very blue, very fast. We’ll be looking at why.

Part II

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Yes, Many from the Left Do Support Abortion Up Until Birth: Jen Psaki’s Reign of Untruth on Abortion Continues

But next, as we consider the moral and cultural context in which we live, I want to point to a single tweet or at least a tweet posted on Twitter that is now X. It’s by Jen Psaki, the former White House press secretary to President Joe Biden. And it came as she was reacting to some of the words exchanged in the recent Republican presidential nomination debate.

She posted this, “No one supports abortion up until birth.” Now, that’s all she said in that tweet posted at 8:40 PM on August the 23rd, 2023. It received at least at this point, 1.6 million views. “No one supports abortion up until birth.” But that is absolutely untrue. And Jen Psaki has to know what’s untrue, but it is at least of a peace with the untrues she and the Biden administration have been telling about abortion now for a number of years. Again, she states, “No one supports abortion up until birth.”

Now, let me tell you what she’s probably thinking there. She’s thinking that she has cover because the national news media won’t go after this. They just accept that and nod and just say, “Nothing happening here, move on.” But the reality is, that what you have right now is that the posture of the Democratic Party on the issue of abortion has shifted from fighting restrictions on abortion, say restriction by restriction to just arguing pretty straightforwardly, there should be no restrictions on abortion. Now, if there are no restrictions on abortion, that means that abortion indeed should take place or could take place right up until birth.

Now, Jen Psaki says, “No one supports abortion up until birth.” But let’s put it this way, if you are opposed to every single restriction on abortion up until birth, guess what? You are for the availability of abortion right up until birth. This is a war of words, and she knows it, and the mainstream media will go along with her. Indeed, they did go along with her. Where were those in the mainstream media to cry out and say, “Look, all these democratic candidates, indeed, the orthodoxy, the Democratic Party is to oppose any and all restrictions on abortion, which means that yes, one way or another, abortion will be available right up until the moment of birth.”

Now, you say, “Well, look at some of the arguments being made by at least some Democrats, and yet the exemption language and even the legislation that they propose would effectively allow one way or another for abortion to be available right up until birth.”

Jen Psaki is also after her service as press secretary of the White House. She’s now a host for MSNBC, the more liberal of the cable television networks, and she made a statement in terms of a follow-up to her tweet. She said, “No one supports abortion up until birth.” She said just a few days later that that, , “Seemed to really strike a nerve.”

But then looking at how this story unfolds, she actually didn’t make the case that it never happens. At one point, she said, “Again, this does not happen often, and when it does, you can see how painful this really is through personal stories.” She went on to say that, “No one is rooting for late term abortions.” And she said, that no one is running on an avowed platform about, “Aborting viable babies.” More coverage on that by Miranda Nazzaro at thehill.com.

On her own MSNBC program, Jen Psaki said,, “This claim that Democrats support abortion, up until the moment of birth is entirely misleading.” She said, “First of all, abortions past the point of fetal viability do not happen often. They are incredibly rare, and those that happen involve agonizing emotional and ethical decisions.” So you notice how this shifts, it shifts from nobody does that, to well, they’re only a minority of abortions, and in those cases they’re very agonizing situations. But here’s where things get very interesting, because Jen Psaki cited a study, and that study actually says a great deal that Jen Psaki didn’t want her listeners or viewers to know.

John McCormack writing for National Review sets the issue straight when he says, “Psaki’s claim simply isn’t true. Contrary to the former White House press secretary’s assertion, a majority of late term abortions kill the physically healthy babies of physically healthy mothers.” He goes on and says, “Although a baby born at 21 weeks of pregnancy has survived his stay in the neonatal intensive care unit, data suggests that most abortions performed between 20 and 28 weeks of pregnancy are not performed for, ‘reasons of fetal anomaly or life endangerment.'” McCormack cites a 2013 study.

Dr. Warren Hern, who’s an abortionist in Colorado, was profiled in the Atlantic. McCormack points to this, and he performs only late term abortions. As McCormick explains,, “Killing premature infants in the womb who are 22, 25, even 30 weeks along.” As McCormick writes, “Hern admitted that most of the abortions he performs later than 21 weeks target healthy babies of healthy mothers. Abortions that come after devastating medical diagnoses can be easier for some people to understand, but Hern estimates that at least half and sometimes more of the women who come to the clinic do not have these diagnoses. While the baby can be delivered alive in a matter of hours or minutes, the late term abortion procedure that Hern performs, ‘takes three or four days.’ So it is not a method necessary for saving the life of the mother when the baby can clearly survive out of the womb.”

Now, I mentioned the study that Jen Psaki indicated and the report that there’s just a fraction of abortions after the point of viability. Now, remember, she said that no one supports abortion all the way up until the moment of birth. She didn’t acknowledge that. Simply doesn’t admit that there are people who want to deny and prevent any restriction of abortion all the way up until the moment of birth. But even if you just look at the numbers, she basically says they’re inconsequential.

McCormack counters that by writing, “Psaki tries to minimize the horror of late term abortions by calling them incredibly rare. According to the Guttmacher Institute, which favors an expansive right to abortion, there are 930,000 abortions performed annually, and 1.3% of abortions are performed at 21 weeks or later.” He just does the math. “That equals about 12,000 late-term abortions a year.”

So now we’ve moved from these don’t happen to these happen, only under extenuating horrifying medical circumstances to a late-term abortionist saying, “No, at least in more than half of mine, that isn’t the case at all.” To saying, “It’s just a very small number. It is 1.3%.” But that amounts to at least 12,000 babies. 12,000 human beings. That’s a small town in America. That’s what we’re talking about annually, in terms of late term abortions.

The abortions that Jen Psaki said basically don’t happen, or if they do happen, they’re very rare, and if they do happen, they’re justified by some kind of medical crisis except the man who’s performing the late term abortion says, “Well, that’s not actually right.” For half, if not more of the abortions he performs at that stage. It’s an amazing admission.

Just as a truth telling and rhetorical device, when someone tells you, nobody supports abortion right up until the moment of birth, well just ask them, “Well then, when do you believe abortions should be restricted or outlawed? Under what conditions do you believe abortion should not be legally available?” The fact that they won’t and can’t answer the question without betraying their position just indicates the big lie behind Jen Psaki statement, that no one supports abortion right up until the moment of birth. Oh, they most certainly do.

Part III

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The United States is Unsafe for LGBTQ Visitors? Canada Goes Global Virtue Signaling

Albert Mohler:
But meanwhile, we tend to think of the nation to our north is a friendly nation, but that supposedly friendly nation has put out a decidedly unfriendly warning to its citizens. As Ian Austen of the New York Times reports,, “The Canadian government is warning LGBTQ travelers to the United States that they may be affected by a series of newly enacted state laws that restrict transgender and other gay people. The department in the Canadian government that handles these things within the foreign affairs departments known as Global Affairs Canada,” As Austen says, it, “added a brief notice on Tuesday of last week to a long list of travel warnings involving the United States that had already included cautions about gun violence and terrorism.”

The same that by the federal office says this, “Some states have enacted laws and policies that may affect 2SLGBTQI+ persons.” Now, by the way, that refers to two-spirit persons. That has to do with a non-binary category of those identified as Aboriginal Canadians. But nonetheless, just notice all of that, and let’s face it, Americans are bad enough with the alphabet soup, but the Canadians top us in this context. Again, 2SLGBTQI+ persons, the notice from the Canadian government simply said, “Check relevant state and local laws.” .

A spokesman for the Canadian government, Jeremie Berube, he did not respond, says The Times, “To a question about whether any Canadian travelers had sought help from Canadian diplomats because of recent state legislation pertaining to LGBTQ people.”

Helen Kennedy also cited in the New York Times story. She’s the executive director of Egale Canada and LGBTQ Rights Group in Toronto. According to The Times, she, “Said that while her organization had not heard of Canadians being affected by the state measures, she anticipated that some would inevitably be caught up in them.”

So the Canadian government through its foreign affairs department, has put out a statement warning that there could be problems here for 2SLGBTQI+ persons who are Canadians traveling to those backward states, to their south in the United States of America. There could be problems, but the Canadian government spokesperson couldn’t actually come up with one, and even an activist group head there in Canada said, “Well, it hasn’t happened yet, but it might.” She applauded the government for issuing the warning. This is how diplomacy and politics is now played out on the world stage. Listeners, this is what we’re looking at. This is virtue signaling by the current Canadian government under Prime Minister Justin Trudeau.

The American government, and our state department, by the way, they’re not above putting out similar kinds of warnings and statements. But I’ll note at least at this point with fewer letters and numbers at least so far. But that plus sign indicates we might actually be intending to catch up with the Canadians in all the letters of the alphabet soup for all these activist organizations and identity politics. After all, when our state department sees this, how are they going to let themselves get bested by the foreign affairs department in Canada? They’re going to come up with a new acronym with more letters to include.

Oh, and by the way, the headline in the New York Times is this, “Gay Canadians warned that some parts of US may not be safe to visit.” I bet they’re not referring to the crime statistics in American urban areas, because that’s not going to reveal the kind of map they’re actually thinking about.