Politico reports on a misleading new Obama radio ad that falsely claims "as president, John McCain will make abortion illegal":
“Let me tell you: If Roe vs. Wade is overturned, the lives and health of women will be put at risk. That's why this election is so important,” says the nurse-practitioner who narrates Obama’s ad. “John McCain's out of touch with women today. McCain wants to take away our right to choose. That's what women need to understand. That's how high the stakes are.”
An announcer then claims that “as president, John McCain will make abortion illegal,” before playing an exchange on "Meet the Press" in which McCain told moderator Tim Russert that he favors “a constitutional amendment to ban all abortions.”
“We can't let John McCain take away our right to choose. We can't let him take us back,” says the ad.
Civics 101 time: The president can't make abortion illegal. If John McCain appointed new conservative Supreme Court justices (who must be confirmed by the Democratic Senate), it is possible that the Court could decide to overturn Roe v. Wade. In that case, the issue would be returned to the states, who would each create their own abortion policies through the legislative process. The odds of McCain successfully passing a constitutional amendment to create a national ban on abortion are zero -- there is simply no way he "will make abortion illegal."
Update 9/3 1:01 PM: The comments below (50 and counting) offer three principal objections. First, they claim the ad is essentially accurate because McCain supports a constitutional amendment to ban abortion. So why not make the perfectly reasonable claim that McCain "would try to make abortion illegal" or "wants to make abortion illegal"? Obama's people surely understood this distinction. Indeed, consultants frequently include distortions of this sort in their ads as a way of generating press coverage (i.e. "free media"). Second, people object to the title of the post, which I've updated to be more precise ("Obama claims McCain 'will make abortion illegal'"). Finally, some people claim that Congress could pass a legislative ban on abortion if Roe were repealed but my understanding is that federal jurisdiction over abortion policy in a post-Roe world is unclear (I would welcome clarification from legal experts). In any case, such legislation could not pass Congress in the foreseeable future.
Update 9/3 1:54 PM: Matthew Yglesias misconstrues my position in a critical response to this post:
For one thing, conservative members of congress regularly seek to pass federal legislation restricting reproductive freedoms (”partial birth” abortion bans, etc.) and I see no reason to think that would change if Roe were overturned. And more broadly, the idea that it’s unfairly deceptive to characterize McCain’s position on abortion accurately — he favors outlawing abortion throughout the country — on the grounds that it’s extremely unlikely that McCain would be able to deliver legislatively on his policy preferences seems like an odd standard. Democrats will almost certainly have a congressional majority in 2009 which makes it very unlikely that any aspect of his domestic agenda will pass precisely as proposed. Does that make it unfair to critique his domestic policy proposals?
Yglesias is knocking down a straw man here -- I'm not promoting "the idea that it’s unfairly deceptive to characterize McCain’s position on abortion accurately" (the issue is whether the characterization is accurate) or the "odd standard" that it is "unfair to critique his domestic policy proposals" because they might not pass in a Democratic Congress (people can critique whatever they want). My issue is with the false suggestion that McCain could somehow make abortion illegal during his term by appointing justices who would repeal Roe.
Note: A lawyer who emailed me argued that prevailing interpretations of the Commerce Clause would allow for federal legislation regulating abortion. However, it is not clear whether expansive readings of the Commerce Clause would be scaled back under a more conservative Supreme Court. If so, federal jurisdiction might be less clear. As I pointed out above, a federal ban could not pass Congress in the foreseeable future in any case.
Update 9/3 5:04 PM: I was wrong on the Commerce Clause -- various lawyers assure me that federal jurisdiction over abortion is not going away. That's what I get for straying into a subject I don't know very well. My claims above are struck out accordingly.
Also, just for the record, I know that many political ads use the phrasing "Candidate X will do Y." That doesn't make it ok, especially when speaking about the president, who is often perceived to have vast executive powers. In this case, Obama's phrasing is especially pernicious because it plays on the widespread misconception that repealing Roe would make abortion illegal.
Finally, here's MP3 audio of the ad from CBS News.