Opinion Forum

Herman Cain Has Mumbled Too Much about Abortion

October 26th, 2011

If he is not more careful, he may abort his candidacy.

There has been much discussion about Herman Cain’s positions on abortion and, largely because of them, he is coming to be referred to as a flip-flopper and the flavor of the week. He disputes these contentions, but they appear to have some bases. The discussion boils down to his position on these essential questions:

1. Should the Federal Government fund abortion, should the states and what would he do about it?

2. Should the Federal Government prohibit all abortions, can it do so under the U.S. Constitution and what would he do about it?

3. Should the individual states prohibit all abortions, can they do so under the U.S. Constitution and what would he do about it?

4. Should the Constitution be amended to allow the absolute prohibition of all abortions and what would he do about it?

5. How important are the separation of the three branches of the federal government and non-interference with the actions of the states and what would he do about it?

Mr. Cain is seeking the Presidency of the United States; he is not trying to be elected King or the governor of a state. Nor as a presidential candidate is he seeking to become a leader of any church. He has stated consistently that he opposes abortion and federal funding for it. However, he has not said enough about what he, as President, could or would do to prohibit abortion. Nor have his statements on the power of the federal government to prohibit it been models of clarity. Although he has said that it all comes down to choices made by the pregnant woman and her family, he has also said that the choice may violate criminal statutes. Here is what he said on October 21st:

It took some rather dense questioning, but he seems eventually to have made this point: it could be a very difficult decision; people make lots of very difficult decisions. If a pregnant woman were to decide to have an abortion contrary to law, having the abortion could subject her to criminal prosecution. That she made a difficult choice would not be a defense to the criminal charges. At least I think that’s what he means.

Roe v. Wade

Candidate Cain said during his 2004 Senate campaign that the Supreme Court’s 1973 abortion decision in Roe v. Wade was a terrible mistake. Mistake or not, it seems unlikely that an absolute prohibition of abortions would currently withstand Supreme Court constitutional review. After thirty-eight years, Roe v. Wade still stands although with some subsequent judicial glosses. Under it, a state can regulate abortion during the first trimester (the first twelve weeks) only to the extent appropriate to ensure that the pregnant woman has competent medical care for the procedure. It can, for example, license physicians and others performing and the facilities where it is to be performed. Beyond that,

the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.

The Supreme Court has not backed off from this position.

The authority of the states to consider the welfare of viable fetuses — those capable of surviving more than momentarily outside the womb — increases to the point that a state can (but need not) prohibit most late term abortions. At the time Roe v. Wade was decided, viability was generally viewed as beginning at the twenty-third week. The Court in Roe v. Wade stated that post-viability,

state regulation protective of fetal life … has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion … during that period, except when it is necessary to preserve the life or health of the mother. (emphasis added)

Questions whether the capacity of a not-yet-viable fetus to feel pain can be considered by the states as a basis for prohibiting abortions earlier than post-viability. A statute enacted by Nebraska in 2010 purports to give it the ability to prohibit abortions at any time from first twenty weeks after conception until the child is born. The statute is based on medical findings that a twenty week old fetus can experience significant pain while being aborted. This is an evolving area of the law and medicine. The question of when viability occurs is also an evolving area of law and medicine. As technology improves, it may be decided that, under the principles of Roe v. Wade, the time at which a state can prohibit abortion will get closer to the date of conception.

Gonzales v. Carhart

The Supreme Court in Gonzales v. Carhart (2007) upheld a partial-birth abortion ban that became federal law in 2003. It prohibited the intact “dilation and evacuation” (D&E) method that involved crushing the head of a fetus when removing it from the cervix and vagina. Oddly, the federal law then before the Court did not prohibit another D&E procedure, where “the fetus is usually ripped apart as it is removed, and the doctor may take 10 to 15 passes to remove it in its entirety.” A federal interest in prohibiting the former was stated in a Congressional finding that

the Act’s stated purposes … [of] protecting innocent human life from a brutal and inhumane procedure and protecting the medical community’s ethics and reputation. The government undoubtedly “has an interest in protecting the integrity and ethics of the medical profession.” … Moreover … the government may use its voice and its regulatory authority to show its profound respect for the life within the woman…. The Act’s ban on abortions involving partial delivery of a living fetus furthers the Government’s objectives. Congress determined that such abortions are similar to the killing of a newborn infant.(internal citations omitted)

The Court relied on this finding and held that once a fetus has been delivered to a position where the head is to be crushed, the fetus has been delivered “for the purpose of performing an overt act that the [doctor] knows will kill [it].” The Court held that there is sufficient federal interest in protecting medical ethics to prohibit it.

Mr. Cain should support a federal prohibition of non-intact abortions as well. There, the fetus is destroyed prior to delivery no less brutally; both procedures are equally gruesome, inhumane and unethical.

Mr. Cain should modify and clarify his positions.

Short, reflexive off-the-cuff sound bites are inadequate to present, clearly, a candidate’s views on anything more complex than the wonders of motherhood and apple pie. Sometimes, even clear answers to specific questions are interpreted out of context and thereby distorted. That’s among the problems inherent in the recent candidate debates. When a candidate’s views are murky even to him, he cannot present them clearly. On a contentious matter such as abortion the situation is worse than with many others because it is fraught with legal, ethical, emotional, moral and religious concerns. Mr. Cain has tried occasionally to clarify and consolidate his abortion position but he needs to do more. The confusion and attacks continue despite his October 20th attempt noted at the immediately preceding link; for example, here, here, here, here, here, here and here on October 23rd and October 24th. It should be clear that in his heart he is very opposed to abortion; he seems to have been clear on the point in his wallet as well, having used his own funds to urge Blacks to vote pro-life in 2006. Still, voters, the media and even opposing candidates need unmistakable keys to understanding his heart — and not only those in what are currently key states. In formulating and expressing his heartfelt views, Mr. Cain should consult with attorneys, physicians and probably a pastor or two in deciding how his views can best be expressed accurately and clearly. Also of great importance, he must understand and clearly express what he, as President, could and would do. Recently, he apparently said that if a constitutional amendment banning abortion were to come to his desk, “I’ll sign it. That’s all I can do. I will sign it….” However, he won’t be able to do that; constitutional amendments are not signed by the President. The Congress and the states accept or reject them.

What Mr. Cain Should Say.

This is the guts of what he should say — perhaps in a speech the advance text and full verbatim transcript of which are made available. Mr. Cain has not yet said many of these things with adequate clarity. Apparent changes in position are usually seen as political attempts to hide real views and whore for votes. I do not think that Mr. Cain has been whoring for votes but a popular perception seems to be growing that he has; his views at least seem to be in flux. I may be wrong as to what they are, but believe that the statements offered below should reflect his views after he thinks about them some more and stops speaking off the cuff; after a statement has been made, attempts to say what he really meant don’t go over well. Should he not clearly express his views and be elected, he will not meet popular expectations and his presidency will be seen as a failure.

1. I oppose all federal funding for abortions. To the extent within my power as President, I will make such funding cease. I will veto federal spending provisions purporting to authorize it. Except to the extent that federal laws prohibit abortions, it will not be my position as President to try to stop any state from spending its own funds to provide or otherwise to finance abortions. Article II of the Constitution does not give that power to the President and the Tenth Amendment denies it to the federal government.

2. I will support a federal law prohibiting abortion in circumstances where there is a federal interest, such as I believe exists in prohibiting late term, also referred to as partial birth, abortions. I disagree strongly with the position President Obama has stated on this matter.

[This video shows portions of a speech by President Obama when, as Senator Obama, he was seeking the presidency. Depictions of a partial-birth abortion being performed are interspersed with his remarks.]

I will support an exception where such abortions are medically necessary for the survival of the pregnant woman because I understand that such circumstances are very rare, that partial birth abortions are late term, long after after viability and well along in the period when a fetus can experience pain. I also understand that this exception is the least permissive required by Supreme Court precedent. It is pointless to enact a law only to have it struck down by the Supreme Court.

[This photo shows the results of a late term abortion. Caution — may be offensive to some readers.]

Here is a thought for those who favor permitting late term abortions but who oppose the death penalty even by lethal injection due to their perception that a to-be-executed-criminal will thereby experience pain. I see either a gross inconsistency or a belief that society must be more solicitous of condemned murders and rapists than of fetuses. I disagree with them.

3. As President, I will not challenge the constitutionality of state laws prohibiting some or all abortions. Not only do I favor the prohibition of abortion, I do not consider interfering in such matters a proper presidential function. Nor will that be a function of my administration. In making their laws, the states consider their constitutionality under their own separate constitutions and also under the United States Constitution, which is the supreme law of the land. When there are questions concerning the legitimacy of state laws under the United States Constitution, it is the proper function of the Supreme Court — not the President or his Executive Branch — ultimately to resolve them. If there are meritorious challenges to the constitutionality of such laws, those presenting them do not need and will not receive the assistance of my administration.

If and when the force of Roe v. Wade and its progeny is changed by further Supreme Court action or by constitutional amendment, I will, as I must, accept the then final decision of the Supreme Court or whatever the constitutional amendment says. Whether I like or dislike the result. It is wrong for the President to disparage an action of the Supreme Court or of a state government. It is also counterproductive as well as pointless. I believe that President Obama overstepped the bounds of his office when he disparaged the Supreme Court’s first amendment decision in the Citizens United case — before a joint session of Congress with six Supreme Court Justices in attendance. His remarks went far beyond the pale. I shall not make such forays into the affairs of the states or the wisdom of Supreme Court decisions. When I consider that an act of Congress is unconstitutional or stupid, I shall veto it. If the Congress then passes it over my veto, I shall execute it faithfully as I am obligated to do.

4. I hope to see an amendment to the United States Constitution prohibiting abortion sent to the states and ratified. Constitutional amendments are very difficult to pass. I shall not propose an amendment because I do not consider that a proper function of the President. They need no presidential action but do require action by the Congress and the states. If an anti-abortion amendment is proposed as provided in Article V of the Constitution, I shall support it if there are reasonable chances of passage by two-thirds of both houses of Congress and ratification by three-fourths of the states. Currently, neither seems very likely.

5. I am convinced that the separation of federal powers as specified in the Constitution is legally necessary and, to the extent followed, has been beneficial historically. I am also convinced that the functions of the states in our federal system as provided for in the Constitution are legally necessary and, to the extent followed, have also been beneficial historically. I shall resist efforts to abrogate those separations of function and power.

6. Please vote for me or for whichever Republican candidate is nominated. Otherwise, this is what you will have to endure for another four years:

If Candidate Cain does something like this soon, some on the left, on the right and in the middle will probably find his position too strong or too weak. However, it’s better to know his positions now rather than to find out later, after he assumes office. His statements would also bind him to specific positions, something most candidates do not want to do. Tough. He as well as the other candidates should feel compelled to do just that.

(This article was also posted at Dan Miller’s Blog.)

Articles written by Dan Miller
Tags: abortion, Cain, Constitution, late term, partial birth, Roe v. Wade, states
Categories: Law, News, Politics | Comments (8) | Home

8 Responses to “Herman Cain Has Mumbled Too Much about Abortion”

larry | October 28th, 2011 at 3:06 pm

Dan
It never fails to amaze me how much noise is made over the abortion question. Abortion in America is a done deal. Sure you can use it to beat up on Herman Cain but he can’t change anything.

Dan Miller | October 28th, 2011 at 4:11 pm

Yep. Aside from federal funding and nominating judges who may (or may not) oppose abortion, there is very little that a president can do. Still, it’s a highly emotional issue that grabs people.

larry | October 29th, 2011 at 12:45 pm

Dan
I agree with you completely about the possibilities of funding and court appointments. It appears that Cain’s abortion position is no different than any other politician. The man is after all running for the highest office in the land. He will “straddle” the fence as much as necessary. How else can he survive in today’s political environment?
The murder of the masses ,or so we are told, is made perfectly legal by Roe versus Wade? Do we know how many lives have been denied an opportunity to exist because of this law? Is it 30 million, is 40 million or is it even more? Our society would never repeal the legality of abortion. To do so would surely raise the question of whether or not the past abortions were in fact murder. I personally view them as such.
Please spare me the morbid stories of women and coat hangers in dark alleys. By all means if a woman’s life is in danger save her. Sadly abortion today is a brutal form of birth control. Arguments to the contrary are ,in my opinion, without any real merit.

Dan Miller | October 30th, 2011 at 3:03 pm

Larry,

Abortion during the first trimester cannot be made criminal by state (and presumably federal) laws under Roe v. Wade and there has been no subsequent modification of that position. After a fetus has become viable, or perhaps after it is capable of experiencing pain, it’s pretty much an open question.

As to whether new laws or new interpretations might retroactively criminalize abortions lawful since Roe v. Wade, anything is possible but fewer things are probable. Such criminalization strikes me as quite a bit less than probable.

As you can sense from the article, I think abortions after viability and after a fetus has become capable of experiencing pain can properly be outlawed; I think they should be except when the life of the pregnant woman is otherwise seriously and medically very much at risk. That is, of course, a value judgment as to which reasonable people can obviously differ. However, considering the language of Roe v. Wade, that seems to be “the law” now.

True, abortion has unfortunately become a form of birth control. That is very unfortunate because there are many very effective means of birth control. Sometimes, however, normal birth control medications don’t work well because other medications can interfere with them. It might help were these interactions better publicized, but that seems unlikely.

To take a perhaps inappropriately lighter tone, I understand that strict Roman Catholics believe that life begins at the moment of conception. Many others believe that it begins at some point later than that but before or at birth. Unitarians are said to believe that it begins when the kids move out and the dog dies. I favor the Unitarian view, except the bit about the dog.

Tom Carter | October 31st, 2011 at 10:55 am

Abortion didn’t become a method of birth control just after 1973. It’s always been a form of birth control, as far back as history records. What’s different now is that a woman has an unrestricted choice since Roe v. Wade, which made for poor law but has provided a solution to what is otherwise an impossible issue.

Larry’s dismissive reference to back-alley, coat-hanger abortion reveals a very poor understanding of the issue. Such dangerous abortions weren’t carried out to save the mother’s life, for the most part. They were the last resort for women who felt they had no other choice — and they didn’t. Now they do.

I’m pro-choice within the framework established by Roe v. Wade. That leaves me free to completely oppose horrific late-term abortions, which are statistically rare, except when necessary to save the life of the mother. Such abortions are an example of picking a very small number of cases to advance a broader agenda.

I personally don’t much care what a political candidate thinks about abortion. I don’t think Roe is very likely to be overturned or significantly modified, even by more conservative judges. And politicians (and others) who want to see Roe overturned better be careful — they may get what they want. Chaos.

d | November 1st, 2011 at 9:16 am

I agree with everything you said,Tom. Hopefully Roe V Wade is never overturned,which would send women back to the past horrific,desperate measures. When men get pregnant,then they should have a voice for abortion,until then,they can go on spreading their seed,willy-nilly. As long as there are fertile men and fertile females,some are children,not women,there will be abortion,legal and safe, or illegal,and deadly.
Abortion is the most horrific decision a female has to make,but it should be hers to live with,not ours,or our governments.

Anonymous | November 1st, 2011 at 2:41 pm

Herman Cain is doing the right thing to focus on issues that really matter. We saw what happened during one of the debates when the Gardisal vaccine issue was brought up. It took away from the discussion of more important campaign issues and for days thereafter, the media spent WAY too much time on it. Don’t get me wrong, I do NOT approve of the Gardisal vaccine but at the same time, I do not thing it needs to be discussed at the debates. No president will ever have the time to overturn Roe vs Wade. Roe vs Wade is a done deal.

Dan Miller | November 1st, 2011 at 3:29 pm

Annon,

As noted in the article, Roe v. Wade remains the law of the land as interpreted by the Supreme Court. While it stands, it continues to say what it says and to mean what it says. As also noted, there are increasing areas of openness for anti-abortion measures at the state level. To the extent that the states have latitude, there is very little that a president could or, in my view should, do to change that; it’s a matter for the states, not the federal government.

A president can push to eliminate abortion funding and take the other measures mentioned in the article.

I disagree with the thesis that abortion is not an important campaign issue. It may be unfortunate that it is, but that does not mean that it is not. It is an important issues because emotions, religious feelings and the like are at issue. Mr. Cain should concentrate, exclusively if possible, on (a) his personal beliefs because they are important to many, and (b) of greater importance, on what he could and would do as the President.