Obama: McCain "will make abortion illegal"

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 Finally, some people claim that Congress could pass a legislative ban on abortion if Roe were repealed but my understanding is that federal jurisdiction over abortion policy in a post-Roe world is unclear (I would welcome clarification from legal experts).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.

Comments

[Mike P]

Brendan,
While I agree that the saying McCain will make abortion illegal is misleading, it's not misleading to note that McCain DOES favor overturning Roe. Now, as you say, it would take more than McCain's election to do that (he'd have to have a court sympathetic to that point of view and they'd have to have a case come before them that would allow for a challenge to Roe and/or Casey) but most Americans aren't up on the civics of this thing as well as you are.

[Jinchi]

I think you're being overly literal here, Brendan. John McCain would undoubtedly name justices who would vote to overturn Roe. In fact, given his choice of Palin, it seems quite possible he'd name justices whose primary objective was to outlaw Roe.

There is already a very aggressive movement in the country attempting to strip abortion rights, state-by-state, while a national one attempts to strip it procedure-by-procedure. These aren't limited to overturning Roe-vs-Wade and rulings by the court don't always simply send the question back to the states (the "partial birth abortion" ban applies everywhere). These movements had significant success in recent years.

Voting for John McCain is effectively a vote to overturn Roe and outcomes are what ultimately matter.

[BG]

While I agree with much of the substance of your post, your header is just plain wrong. There is no distortion of John McCain's position or goals. There is an exaggeration of McCain's likelihood at success, but that's not a distortion of "McCain on abortion."

Furthermore, I think your grasping at straws by arguing candidates can't assume their opponents' legislative success. Say I announce tomorrow that if elected I would pass a law prohibiting women from wearing pants (only skirts and dresses). Does the fact that I would stand no chance at passing my law mean that my opponent ought to be prevented from attacking me by saying "if elected, BG will prohibit women from wearing pants!"??

No. Inherent in any issue based attack is the assumption that one's platform will be successfully implemented. That's not a distortion.

[cleek]

Civics 101 time:

if you're going to play that game, you're going to have to tsktsk every other line in both candidates' stump speeches, since they both pledge to do things they, strictly speaking, a president doesn't have the power to do. but, what they clearly mean, and what everybody since the late 1700's has understood it to mean, is that they're going to work to make it happen using the power the presidency does have.

[Peter]

One word on McCain and Abortion: Palin. What else does she have to do at the Naval Observatory but fight Roe.

[August West]

In a way the article is right - the ad is a distortion. Repubs don't really want to make abortion illegal because it's too good an election issue for them. Is much better for the GOP to keep pretending they want to ban the practice, which gets "the base" (which I think, translated into arabic, is something like "al qaeda") all excited and lathered up, but everyone knows their calls for a ban will never go anywhere, so the fiscal conservatives aren't put off. Sure, there could be the odd bit if tinkering aroud the margins on abortion law (waiting periods, parental consent, etc) but fundamentally the repubs don't have the balls to make it illegal.

August West

[Bridget]

Make no mistake, McCain signaled his commitment to overturning Roe v. Wade by choosing Palin. Or would you like to personally get up and explain to all those thrilled Repub Convention delegates that old Johnny Mac really has no interest in enacting their anti-choice agenda?

[craig Thomas Peterson]

i think your argument is a stretch - perhaps more of a distortion than your accusations against obama's ad content. mccain's ambitions are clear. now that he has palin on the ticket there really can be no question where mccain stands on roe v wade.

[Bryce]

What makes you think he wouldn't either support legislation that made abortion illegal, or simply pass an executive order that made it illegal, in the event Roe was overturned? Your position seems to be that it is very unlikely that McCain would be successful in making abortion illegal...so somehow it is a distortion of his position (that abortion should be illegal) to say that his position is abortion should be illegal.

[Tom]

It is interesting to note how many women believe in choice, but are willing to vote for a man who does not, on the bet that he would not be able to follow through on what he believes. Isn't that besides the point? Doesn't his belief that women should not have the choice say enough to these women that they would not want to vote for him? With so much at stake, why take the risk?

[The Phantom]

Brendan,

You're smarter than this. Literalism in defense of clear political objectives is what got us into the war in Iraq. McCain wants to appoint people who will overturn Roe vs. Wade, and as President he would have that power. Bush took two bigs steps in that direction after 2004, and he was able to do so in part because Democrats failed to make the connection that this ad makes. To your claim that McCain is being unjustly targeted, I would reply that McCain is trying to fly under the radar on this issue despite his stated intentions.

Find something useful to bitch about.

[Lilybart]

August, I disagree. Overturning Roe does NOT take away this wedge issue for the GOP. It makes it a wedge issue in every state and at the Federal level with national bans for decades.

If Roe is overturned, all the anti-choicers in every state will try to ban abortion AND contraception AND they will try for a Federal ban.

This "common wisdom" is just wrong.

Reproduction rights as an issue will NEVER go away until medical science finds foolproof safe contraceptives AND a way to take an embryo out of one womb and grow it somewhere else.

[Lilybart]

August, I disagree. Overturning Roe does NOT take away this wedge issue for the GOP. It makes it a wedge issue in every state and at the Federal level with national bans for decades.

If Roe is overturned, all the anti-choicers in every state will try to ban abortion AND contraception AND they will try for a Federal ban.

This "common wisdom" is just wrong.

Reproduction rights as an issue will NEVER go away until medical science finds foolproof safe contraceptives AND a way to take an embryo out of one womb and grow it somewhere else.

[JR Shells]

I thought this post was going to be about Obama distorting McCain's record. McCain has clearly stated that he believes Roe v Wade should be overturned and that he would appoint Justices in the mold of Scalia, Thomas, Roberts, et al. in order to make that happen... so how is this a distortion? Obama has every right to point out this policy position and this is MUCH better than McCain stating that Obama believes that Iran is a "minor" threat. Now, that is distortion at its highest level. This is truth, perhaps exaggerated, but truth nonetheless.

[Royce]

Cheap shot. As far as distortions in political ads go, it's minor. If Obama was misrepresenting McCain's view on whether abortion should be illegal I'd be more sympathetic to the complaint. But he isn't.

[August West]

Lily, agree that the hardline dead-enders will keep pushing for bans on abortion, contraceptives, etc. irrespective of what happens, my basic view is that banning abortion would alienate lots of people who currently vote republican because they agree with economic policies but are put off by their more theocratic breathren in the other half of the tent. Successfully banning abortion would make it clear to these moderates that the inmates, as it were, had taken over the asylym.

[Royce]

Cheap shot. As far as distortions in political ads go, it's minor. If Obama was misrepresenting McCain's view on whether abortion should be illegal I'd be more sympathetic to the complaint. But he isn't.

[Brian]

A few other things Presidents don't have the power to do:

Raise or cut taxes
Reform health care
Implement any form of cap-n-trade for carbon

I could go on and on. Will you be criticizing any ads that talk about the President "doing" those things?

McCain's stated goal is a Constitutional ban on abortion. All this ad does is take him at his word.

[Larry Geater]

It is not a distortion to say he will outlaw abortion if that is his stated goal. He gets no slack for his impotence! Would you eliminate the crime of attempted murder or conspiracy?

[Will Walker]

I think its pretty clear from his stated position that McCain would appoint anti-choice justices, thus clearing the way for abortion to be made illegal. I don't see anything misleading about that ad.

[JimmyM]

Brendan, you're way off base here. As the clip in the ad makes clear, McCain supports a constitutional amendment banning abortion nationwide

Maybe it's not realistic. But it's still McCain's position. And if he takes a position like that, he should be held accountable.

[Tom Limoncelli]

Your logic is broken.

That's like saying "I'm not making your nose bleed. I'm just punching you in the face and your nose is bleeding because your nose was constructed as it is."

John McCain will act to make abortion illegal, so that women can go back to being found dead from back-alley abortions. He isn't interested in a pragmatic plan like reducing the number of unwanted pregnancies by science-based sex education, contraception, and family planning.

[CitizenE]

Get out the clothes hangers America, the righteous are coming with abstinance only sex ed.

[Obama Will Tax Hugs and Cute Babies]

Lies in the ads hurt, don't they, B-Ny?

[mike]

Brendan,

I think you are wrong. Who says it can ONLY go back to the states? Congress passed a partial birth abortion bill; had there been no Roe precedent, would that law have necessarily been overturned? I do not recall it being a case of lack of plenary power. If Congress can try to ban one controversial method, why could they not ban all abortions?

On a somewhat related matter, can people stop saying Palin made a pro-life choice? That is an oxymoron -- anti-abortion means no choice. This also means that while we should all wish Palin well in raising a family of 5 with a Downs baby, how can we say she made a good choice, when according to her beliefs there was no choice?

[steve duncan]

I take McCain at face value when he says he believes life begins at conception. I also believe he would feel personally responsible to uphold that opinion and lobby for enactment of laws supporting his position. Whatever else Obama says the main thrust of his argument holds. McCain wants a legal code at odds with the majority of U.S. citizens. If a fertility clinic in possession of thousands of frozen, fertilized human eggs (life as defined by McCain) suffered a power outage is anyone arrested? Did they have a back-up power system in place to protect those lives? No, they didn't? Hmmmmm, now we seem to have to charge the owners with several thousand counts of negligent manslaughter, at minimum. And what of IVF procedures? Many fertilized eggs don't survive and that outcome is known and accepted by both the patient and the doctor performing the procedure. Where is the murder charge made in this scenario? Can pregnant women drink in John McCain's desired world? Feeding a newborn Jack Daniels is a crime. Doesn't alcohol reach the fetus through the placenta? Same for smoking. Several forms of birth control become illegal. McCain wants to make abortion illegal. That's the point. Any sand thrown in the eyes is just that, an attempt to obscure the point of Obama's ad.

[mwfolsom]

Please go away - you're simply splitting hairs. Guess you needed a post and didn't have anything else to wine about.

McCain has promised to do what he can to make abortion illegal and another Supreme Court Justice will just about do it. So he can't make it 100% illegal in 100% of the States is just a technicality. He can do lots to make it harder in all states and while it may be theoretically possible in a few states the result will be the same - it will be impossible or next to impossible for any women to get an abortion in any state.

[Gabriel Sutherland]

Mr. Nyhan is correct. The ad is wrong.

Presume for a moment that John McCain is President, Ginsburg and Stevens retire, he appoints Bork and Tony Perkins to the SCOTUS, the Senate controlled by Democrats confirms them both, a case needles its way through the lower federal courts, the SCOTUS picks up the case, they rule to overturn Roe.

Is abortion still legal?

Conditionally, yes.

What's more strange about this ad is that it doesn't say anything about what OBAMA will do as it relates to abortion. He told the Planned Parenthood Action Fund in July 2007 that his first act as President will be "to sign the Freedom of Choice Act." This act will supplant Roe and prohibit any restrictions at all on access to abortion. The act will make the United States the leading nation in world in terms of open access to abortion at any stage of development.

As the clip in the ad makes clear, McCain supports a constitutional amendment banning abortion nationwide.

This isn't an accurate statement. In order to be accurate it must be worded along these lines.

"John McCain HAS said he supports a Constitutional Amendment to ban abortion. Currently, John McCain says he opposes a Constitutional Amendment to ban abortion."

The quotes that support McCain's previous position on the amendment are from January 2000. His position has changed since then.

[mwfolsom]

Please go away - you're simply splitting hairs. Guess you needed a post and didn't have anything else to wine about.

McCain has promised to do what he can to make abortion illegal and another Supreme Court Justice will just about do it. So he can't make it 100% illegal in 100% of the States is just a technicality. He can do lots to make it harder in all states and while it may be theoretically possible in a few states the result will be the same - it will be impossible or next to impossible for any women to get an abortion in any state.

[Michelle]

Good post, Brendan. Amazing logic displayed in the comboxes here -- "So what if Obama's lying ..." Why can't we expect Obama to just tell the truth? Why make excuses for distortions? Win at all costs?

[neil]

You picked a pretty weird thing to go all semantics-cop on, B. John McCain has stated clearly in his own words that making abortion illegal is his goal. It's a fact McCain as President will have much more influence to make abortion illegal than he does now. It's a fact that McCain as President will have more influence to make abortion illegal than any other single individual in the government.

So basically you're complaining because Obama didn't mention in his ad what we all already know: That there are checks and balances in the U.S. government. If we are so ignorant of this fact that we need it to be reiterated in every single 30-second radio ad, God help us.

[Freddie]

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

Indeed! Which would... wait for it... open the door for passing a nation-wide abortion ban. Once Roe v. Wade was overturned, there would be no need for a constitutional amendment to ban abortion.

Civics 101, man.

[postalchris]

You're also assuming that a Democratic Senate will have the backbone to shoot down anti-choice but otherwise qualified judicial appointments. Recent history suggests this may not be the case.

[Michael]

I don't think that's unfair at all; granted, he won't be able to directly outlaw it, but if he a) appoints justices who overturn Roe and b) the states run by those crazy enough to ban abortions do so, then for every woman in those states that choice is either illegal or requires travel to another state. For those women, there's nothing about this situation that didn't 'make abortion illegal', and for many women, that travel isn't quite so easy. Gas prices aren't exactly good yet, and not all of us live in the NY region and have another state 45 minutes away.

I hope my home state of Texas still has enough sanity in its politics to prevent this happening (I believe it does), but make no mistake; if that happened, a woman in Brownsville or San Angelo most certainly will find her abortion to be illegal.

[Gabriel Sutherland]

There's a good comment over at Patterico
that is worth digging up some supporting data. That is if there is data to support it.

The radio ad is important because a surprising number of independent women believe that McCain is pro-choice.

[Craig]

Brendan -

Of the states in which this ad is running, how many would end up with laws outlawing abortion?

There is misleading and then there is misleading. This makes good copy for you, but I'm not sure how much of a political sin it is to not explicitly say "McCain would appoint justices that would want to overturn Roe v. Wade, which would in turn make it a state issue, and then your state would likely make it illegal."

The line of causation is not so attenuated to say this ad is misleading.

And while you could argue that using McCain's quote from Meet the Press does misleadingly imply he would make abortion illegal through a constitutional amendment, the quote also, more importantly and quite vividly, shows McCain's deep commitment to his anti-abortion stance.

So, score one for the pedants, but we have bigger fish to fry in terms of misleading attacks in this election.

[Gabriel Sutherland]

Once Roe v. Wade was overturned, there would be no need for a constitutional amendment to ban abortion.

This isn't accurate at all. Even if Roe was overturned, there still would be interests pushing for a constitutional amendment to ban abortion.

[Freddie]

This isn't accurate at all. Even if Roe was overturned, there still would be interests pushing for a constitutional amendment to ban abortion.

Whether or not there are interests pushing for it, the fact remains that as a basic matter of American law and jurisprudence, once the constitutional opposition to passing a Congressional abortion ban is removed by overturning Roe, the Congress as well as the states can pass laws restricting abortion however they'd like. Nyhan is simply wrong to assert that it would continue to require a constitutional amendment for Congress to ban abortion after the overturn of Roe

[alkali]

Some conservative lawyers have argued that the Equal Protection clause of the 14th Amendment requires treating abortion the same as murder. If the Supreme Court adopted that argument, that would criminalize abortion everywhere.

[Gabriel Sutherland]

Nyhan is simply wrong to assert that it would continue to require a constitutional amendment for Congress to ban abortion after the overturn of Roe.

Nyhan is right. If you overturn Roe v Wade today, tomorrow you'd still have to pass a law that would ban abortion at whatever level of government you wish to apply. If it's the states, they'd had to pass a ban. If it's the US Congress, they'd have to pass a ban.

This is a fact. You're conflating existing regulatory procedure as an already in place "ban on abortion". These regulations do not ban abortion. You'd have to have new laws to ban abortion.

Read Jeffrey Rosen's Day After Roe article.

[Freddie]

Nyhan is right. If you overturn Roe v Wade today, tomorrow you'd still have to pass a law that would ban abortion at whatever level of government you wish to apply. If it's the states, they'd had to pass a ban. If it's the US Congress, they'd have to pass a ban

Yes, which is precisely what I'm saying. Nyhan said that they would have to pass a CONSTITUTIONAL AMENDMENT banning abortion, when in fact Congress would only have to pass a LAW banning abortion. You do understand the vast difference between passing a bill and passing a constitutional amendment, right?

[Andrew Hoffmann]

The idea that if Roe v Wade is overturned, then each state will individually pass abortion laws without any interference from the federal level is really laughable. Unless the Supreme Court is dedicated to striking down federal abortion bans while allowing state ones to stand (and a fat chance there is of that if they're willing to overturn Roe v Wade), then Republicans will pass federal anti-abortion measures pretty much as soon as they get the votes for it. Maybe - MAYBE - you could argue that any McCain administration wouldn't have the votes in Congress to pass a federal anti-abortion law, but if that's the case you're making, then you can make it about almost any McCain policy.

[James Hare]

Considering McCain's VP pick, it's hard to see how he's friendly to abortion rights. His supreme court justices would overturn Roe, and his party would push for bans in every state. The kind of abortion bans women have every right to fear are for more likely under a McCain Presidency than an Obama Presidency.

Of course, the number of abortions under either is likely to be the same unless steps are taken to reduce the number of unwanted pregnancies. Only one candidate has discussed that. If you're really "pro-life" you should consider that.

Having marched in the March For Life, it seems for many folks it's not about saving lives. Instead it's about proving your greater morality by demanding the world be black and white when it's really shades of gray. That's why I only marched in the March for Life once--it was impossible to see how that agenda would ever achieve anything positive. The only thing it seems to do is ensure that we never do anything about abortion and always have a big fight about it.

[Mike Alexander]

I don't get this post. I've heard Republicans suggest that they could use this add as a pro-McCain Ad.

The Obama add is dead on accurate because McCain confirmed it by nominating Palin.

[JoshA]

Brendan, give me a break. There's no distortion. McCain wants a constitutional amendment to ban abortions. We know this because he said so on MTP.

The idea that political ads should phrase it like "he wants X, but its unlikely he'll be able to achieve it, so no need to worry" is absurd.

Honestly, what surprised me about this ad is that it ran. Usually, Democrats like to talk about choice without mentioning what the choice are.

[Gabriel Sutherland]

McCain wants a constitutional amendment to ban abortions. We know this because he said so on MTP.

He said this on Meet The Press in January of the year 2000 while running in a Republican Primary.

This talking point might work walking amongst the tribal elders that think the United States is exactly the same on September 3rd, 2008 as it was on that January day in 2000, but this cacophony falls flat when McCain has made current statements that he does not support a constitutional amendment to ban abortion in the United States.

[crack]

Headline is more incorrect than the ad. Distorting the power of the president is not distoring McCain on abortion. Seriously, your headline is more incorrect than the ad. How is this helping discourse?

[rone]

Wow, look at all the upset Obama supporters. I mean, i'm going to vote for the dude, but i do not want to be associated with these angry ninnies.

The ad is very obviously spin-heavy, and i would prefer to see the Obama campaign to continue to take the high road whenever possible. Appealing to emotion is cheap.

[Wes]

Yes, the president can effectively make abortion illegal -- with one more supreme court justice and by signing one federal law. This is a nit-pick demanding that a radio ad fill in the whole causal picture. But the fact that being able to make supreme court appointments, use the bully-pulpit, and sign laws means that the president has a significant role in the legality of abortion.

[Jinchi]

Congress passed a partial birth abortion bill; had there been no Roe precedent, would that law have necessarily been overturned?

The partial birth abortion law was not overturned. Clinton vetoed the original bill in 1997 because it contained no exception for the life or health of the mother. The bill was passed again in 2003 and it was upheld by a 5-4 majority on the court in 2007.