Wednesday, August 20, 2008

Can McCain Have His Cake and Jail Them, Too?

Why aren't pro-choice folks publicizing John McCain's anti-choice record?

And why aren't they -- and reporters -- demanding to know more about John McCain's position on jailing abortion providers and women who get abortions?

Sure, you can reduce abortion access by threatening to jail only doctors who perform abortions and not the women who receive them, as McCain suggested would be likely back on January 31, 2000.

[Why such a policy would be remotely sensible is beyond me: if abortion is a crime, even murder, then surely the woman getting one is at least as culpable as the doctor performing it. But, just to choose one example, what about a woman who by herself uses, say, a coathanger? Such a woman is acting as her own doctor (if an unqualified and dangerous one), so should she go to jail? If not, why not? More generally, how can abortion be a criminal act without any criminal liability attaching to its central conspirator? Is there any law today anywhere in the U.S that criminalizes an act for only some participants in that act? Is it even constitutional to do so? (Statutory/constitutional enlightenment welcome on this issue, honestly.)]

I ask these questions because any economist will tell you that people break laws when they perceive the benefits to outweigh the costs. But as our country knows from years of painful experience before Roe and the 1970 state laws liberalizing abortion rights, simply declaring abortion illegal will not by itself eliminate abortions.

So it's entirely reasonable for people -- advocates on all sides, not to mention reporters -- to ask McCain whether and for how long he supports jailing abortion doctors and women getting abortions. And if he doesn't support jailing the women who get abortions, why not? And, what assurances would there be that states wouldn't jail these women? And, isn't it the case that a state ban that jails only doctors would eliminate abortion rights only for women, since others could travel to other states and even other countries (hey, we still have an embargo against Cuba)? Would McCain support a federal law banning such travel (both Shapiro v. Thompson and Saenz v. Roe would seem to imply that no state could constitutionally ban such travely by a non-minor)? If not, why not? If abortion is murder, or otherwise criminal, why wouldn't McCain support such laws? Surely he is opposed to legalizing travel in furtherance of criminal activity.

All of this is especially relevant at the moment because there's been a lot of talk this week about John McCain's supposed flirtation with choosing a pro-choice running mate (most notably, Tom Ridge or -- please please please let it happen -- Joe Lieberman). I think the best interpretation of this talk is that (a) McCain is going to pick an anti-abortion rights running mate, and (b) McCain is hoping to benefit from further obfuscation of his actual position on abortion rights.

On point (a), I'll be very surprised if McCain risks alienating the large share of the Republican base that's composed of religious rightwingers. Of course, I'm not one of them, so I may be full of it on this part.

On point (b), McCain has benefited hugely from the overall misperception of him as a maverick. It's true that he's bucked his party now and again. But on policy issues, my sense is that the maverick thing was always over-sold, being largely the result of a few high-profile issues, on most or all of which he has now pulled a Shawn Johnson-quality reverse (and even some double-reverses).

But the abortion rights issue is an especially good example of the obscuring of McCain's actual position by his supposed maverickness. To my knowledge, the only evidence of any moderation on the position is this quote from August 24, 1999:

I’d love to see a point where Roe vs. Wade is irrelevant, and could be repealed because abortion is no longer necessary. But certainly in the short term, or even the long term, I would not support repeal of Roe vs. Wade, which would then force women in America to [undergo] illegal and dangerous operations.
But McCain's people walked that back immediately, and McCain has since advocated overturning Roe. In this campaign, he's been quite clear on the matter, and to my knowledge (corrections welcome) his voting record since has been largely hostile to abortion rights.

For more, see this post from Reproductive Rights Prof Blog (I found this with a google search; no doubt there are more recent such discussions, but this is one example).

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