Saturday, January 27, 2007

HB2124 puts the "anti" in "anti-choice"

When Del. Bob Marshall introduced the Marshall-Newman or Marriage Amendment, adding the first prohibition to our State Bill of Rights, one of the main points of defense made by him and his supporters was that it would be passed by voter referendum, thus allowing the people to decide. Though much criticism was and still can be made about the actual language of the bill and how clearly it was presented to the everyday voter, there is a sense of democracy to be argued in this reasoning. Curiously, he does not seem to feel this same sense of democracy necessary for the perhaps equally controversial matter of abortion.

1. § 1. That if and when the United States Supreme Court decision in Roe v. Wade, 410 U.S. 113 (1973), is overturned, allowing the states to by their laws once again regulate abortion, the law in the Commonwealth of Virginia rendering abortion a crime, prior to the decision in Roe v. Wade, shall be reinstated as it was in effect on June 30, 1970. The Attorney General shall publish legal notice statewide that, in his opinion, the decision is overturned and that Virginia's law is as it was prior to the decision in Roe v. Wade as it was in effect on June 30, 1970. The Attorney General shall publish statewide notice of the change in law, along with the following law governing the criminal offense of abortion, amended by him to comport with contemporaneous nomenclature, references and standards (section numbers to be assigned by the Virginia Code Commission):

Any advocate of state rights who has even casually studied the history of Eisenhower, Robert and John F. Kennedy's confrontations with governors Orval Faubus, Ross Barnet and Gorge Wallace over desegregation has had to confront personally the reasoning that our principles should be held as the integrity of our character until those principles supersede our humanity. Conflict with this idea can be attributed to "humanity" being an abstract term. It can also stem from a common moral repulsion towards the idea that ends justify means. Many people (myself included) often associate that philosophy with past atrocities throughout history where such thinking was held as absolutism. Yet in these three cases, where the federal power of our republic had to physically (particularly in the cases of Little Rock, Arkansas and Oxford, Mississippi) intervene on state and citizen resistance to the equal distribution of rights, and the benefits of equal opportunity to optimum education assured by those rights and the supreme court ruling of Brown v. Board of Education of Topeka, few people will debate the justness of those interventions, even though in different circumstances such interventions might go against their own principals of government power. This justification, to me, is rooted in the defense of the ideal behind one of the most fundamental phrases that defines our nation:

We hold these truths to be self-evident, that all men are created equal, that they are endowed, by their Creator, with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.

I evoke all of this as a preemptive response to accusations of hypocrisy. It is, after all, true that I support judicial and/or constitutional overruling of state laws prohibiting the union of two homosexuals be recognized and permitted the rights and benefits associated with marriage. I support such because though that first sentence of the preamble of the United States Declaration of Independence has been subject to extensive reinterpretation over the years, its evolution of meaning (from referring to the equality of all white land owning males, to the inclusion of race and sex) has been in accordance with the philosophy that even our constitution must be somewhat open so as to better accommodate its underlying intent beyond the limits of any one generation's perception. I support such federal intervening because I feel that these laws against homosexual rights have and are being introduced by representatives that are moved by the same reasoning and justification that invoked Gov. Ross Barnett to say, "the Negro is different because God made him different to punish him." There are notable differences between my reasoning for federal intervention and my criticism of Del. Bob Marshall's bill for not allowing Virginia to decide upon abortion. More so I am interested in the inconsistency of his logic.

The first thing that needs to be realized about this abortion bill is the hypothetical element that governs it. Most people seem too preoccupied with the controversy of abortion to address the fact that this bill would prohibit virtually all abortions only in the event that the Supreme Court ever overrules Roe v. Wade. With the Senate and House both controlled by the Democratic Party, the conceivable likelihood of a Democratic president in 2008, and the failure of Bush's attempt to nationally define marriage as between a man in a woman prior to Democratic control of congress, I'm more than a little skeptical of such an overruling happening next week. Granted, our Supreme Court judges are pretty conservative. Still I'm simply unaware of any case that threatens to make this an immediately feasible scenario.

The reality is, if Roe v. Wade is ever overruled, it could be years from now if not decades. In such circumstances only one of two possible results could occur. Abortion would either become illegal on a national level or it would be given to the states to individually decide upon. The latter scenario, which would apply to this bill, would not be granted to voters or even the then current figures of office to decide upon. The very right to choose the best course for our individual state, that the Supreme Court would find as belonging to us, would be deprived by this bill. Instead we would automatically return to the legislation as it stood in 1970. That's 37 years from the present and who knows how long from the hypothetical day of reinstatement. By such time, a whole new generation could be in office and engaged in Virginia politics. Scientific advancements and studies might shed new light on the issue. Economic conditions may change in some notable way. Any number of things could occur, but as long as this bill stood as law, we would be back to what was thought the best course of action in 1970.

The irony of this bill when compared with Del. Bob Marshal's marriage amendment is apparent. The inconsistency in his logic is clear. This is not a bill to prohibit abortion; it is a bill to deprive future generations of Virginians the right to make that decision, were the option to do so granted them by the federal government. Nice one Bob.


Blogger Vivian J. Paige said...

Excellent post!

9:25 PM  
Blogger Bill Garnett said...

I heartedly agree with Vivian, you have well pointed out the hypocrisy of Bob Marshall and similar fundamentalists who are trying to impose a religious point of view on a secular society. This type of state intrusion into personal matters was never the intention of our wise founders and is certainly inconsistent with life in Virginia in 2007. Certainly the focus of our legislators could be better focused and better promote inclusion, tolerance, and legislation based on facts and rational debate rather than superstition and religious beliefs.

1:42 AM  
Anonymous Anonymous said...

Yes and no. On the one hand, we had a constitutional amendment -- referendum is the usual approach there (see Article XII). On the other hand, we have a set of laws governing the practice of abortion in Virginia that have been effectively dictated by the SCOTUS, thus circumventing the democratic process. In the event Roe is overturned, those laws will certainly be re-examined. Should that day come, Bob Marshall will have not only a right, but an obligation to his constituents to put forth his opinion. Obviously, others will differ, but ideally, this will lead to debate in the houses (debate over which, as voters, we shall at last have influence). The distastefulness lies in the timing here, in Mr. Marshall's apparent attempt at a preemptive move, yet this too will certainly be met with debate, as he surely is aware.

5:29 AM  
Anonymous Anonymous said...

On second thought, though, if one does believe that abortion at any stage is the taking of innocent human life, an act of legislative preemption would be not at all distasteful, in fact downright essential, and therefore wholly consistent, albeit still up for debate (regardless of his convictions, the man does not, after all, have dictatorial powers).
Sorry, so much for the "yes" -- just "no" after all!

6:00 AM  
Blogger Cory Capron said...


"an act of legislative preemption would be not at all distasteful, in fact downright essential, and therefore wholly consistent, albeit still up for debate"

However, if the bill were passed it would deprive us of that very debate unless someone challenged it. Though some time will presumably pass between overturning and the carrying out of the notifications and amendments, there is not a clearly stated time of transition, where the bill could be challenged. It will simply become law, reguardless of how much time has passed between when Marshall's beliefs governed his preemptive legislation and the future time that they would effect.

Challenging it after it was instated might even be complicated by the last section (§ 18.2-B. Encouraging procuring of abortion by advertisement, etc.) unless they do so prior to the overturning.

"If any person, by publication, lecture, advertisement, or by the sale or circulation of any publication, or in any other manner, encourages or prompts the procuring of abortion or miscarriage, he shall be guilty of a misdemeanor."

8:41 PM  

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