Strengthening Constitutional Self-Government

No Left Turns

Mitt v. Roe?

Mitt Romney vetoed a bill that would expand access to the morning-after pill, thereby keeping his campaign promise not to change Massachusetts abortion laws.

’’I promised the people of Massachusetts that as governor I would not change the laws of the Commonwealth as they relate to abortion," Romney wrote in a veto letter to lawmakers. ’’If taken soon enough, the so-called ’morning after’ pill performs as a contraceptive. But in some cases, it can also act to prevent the implantation of the embryo. To those who believe that life begins at conception, the morning-after pill can destroy the human life that was created at the moment of fertilization."

Since the bill was passed by apparently veto-proof majorities in the state legislature, the principal practical effect of this stance is to burnish Romney’s credentials for the 2008 primary season.

He explains himself to legislators here and to the readers of the Boston Globe here. His conclusion:

There is much in the abortion controversy that America’s founders would not recognize. Above all, those who wrote our Constitution would wonder why the federal courts had peremptorily removed the matter from the authority of the elected branches of government. The federal system left to us by the Constitution allows people of different states to make their own choices on matters of controversy, thus avoiding the bitter battles engendered by ’’one size fits all" judicial pronouncements. A federalist approach would allow such disputes to be settled by the citizens and elected representatives of each state, and appropriately defer to democratic governance.

Except on matters of the starkest clarity like the issue of banning partial-birth abortions, there is not now a decisive national consensus on abortion. Some parts of the country have prolife majorities, others have prochoice majorities. People of good faith on both sides of the issue should be able to make and advance their case in democratic forums -- with civility, mutual respect, and confidence that democratic majorities will prevail. We will never have peace on the abortion issue, much less a consensus of conscience, until democracy is allowed to work its way.

Discussions - 1 Comment

This is a very odd explanation of the Governor’s decision to exercise the veto. The explanation focuses on the proper relationship between the courts and the elected branches, in particular federal courts and state legislatures; however, the issue of the veto is one that is between the state executive and legislative organs.

Besides not being a real "explanation" of why he exercised his veto, the Governor’s remarks greatly oversimplify the issue that he DOES address, which is the role of the courts and the meaning of democracy in the context of the abortion issue. The Governor’s principle seems to be that where there is a lack of national consensus on a divisive issue such as abortion democracy at the state level should prevail. But there are important reasons of federalism why this solution is inadequate: attempts by states with stricter regulation to interfere with the capacity of their citizens to cross state lines in order to obtain abortions clearly engage important constitutional issues, which will have to be dealt with by Congress, the federal courts or both. Of course states with stricter regulation could simply allow their citizens to vote with their feet--in which case the effects of stricter regulation will be felt largely by those without the capacity or means to cross state lines to get an abortion. But my understanding is that the pro-life people, as they call themselves rather sanctimoniously, will not stop at that.
I am hardly an expert in US constitutional law, but from what I do know, the Governor overstates the impact of federal judicial decisions on abortion. These decisions, based on Roe v. Wade, do not preclude as such government policies with the objective of reducing the number of abortions. Roe v. Wade itself does not stand for the proposition that the avoidance of abortions is not a legitimate, constitutional policy objective. It is just that certain rights have to be respected by the government when it chooses the appropriate policy instruments to achieve its objective.

So what is the empirical evidence? What does comparative experience show concerning the public policies that are most effective in reducing abortions in a given society? Are there effective policies that are consistent with Roe? Only if the answer to the last question is "no" would the Governor be right that the courts have indeed "removed" the matter from the elected branches.

Leave a Comment

* denotes a required field

No TrackBacks
TrackBack URL:

Warning: include(/srv/users/prod-php-nltashbrook/apps/prod-php-nltashbrook/public/sd/nlt-blog/_includes/promo-main.php): failed to open stream: No such file or directory in /srv/users/prod-php-nltashbrook/apps/prod-php-nltashbrook/public/2005/07/mitt-v-roe.php on line 420

Warning: include(): Failed opening '/srv/users/prod-php-nltashbrook/apps/prod-php-nltashbrook/public/sd/nlt-blog/_includes/promo-main.php' for inclusion (include_path='.:/opt/sp/php7.2/lib/php') in /srv/users/prod-php-nltashbrook/apps/prod-php-nltashbrook/public/2005/07/mitt-v-roe.php on line 420