Did Republicans actually endorse a full abortion ban? Maybe not.

August 24, 2012

James Bopp says that the Republican platform does not endorse an abortion ban without any exceptions,  as many media outlets (including this one) have reported. And Bopp should know — he drafted it.

The Republican platform endorses two strategies to "affirm that the unborn child has a fundamental right to life." The first is a constitutional "human life amendment" to protect the rights of the unborn. The second is legislation to "make clear that the Fourteenth Amendment's protections apply to the unborn."

Neither of those, Bopp argues, preclude the possibility of carving out an exception for certain abortion cases.

"We don't set out exceptions because we don't want to get into a debate over which version is appropriate," said Bopp, co-chairman of the Republican party platform Subcommittee on Restoring Constitutional Government. "The issue is restoring legal protection for the unborn. We're in favor of that concept, but not a particular amendment to do so."

I had Bopp walk me through each of the strategies in the Republican platform and what they actually endorsed. We started with the support for a human life amendment. Bopp points out that, when he first drafted this provision in 1980, it was seven years after Roe v. Wade had legalized abortion.

Back then, there was no one thing called "a human life amendment" in Congress; there was a huge variety of bills floating around meant to turn back Roe. Bopp details all of them in his 1984 book, "Restoring the Right to Life: The Human Life Amendment."

Some carved out exceptions for the mother's life and cases of rape and incest. Others did not. Bopp, who drafted the 1980 language, says his party wanted to take a philosophical stance but had no chance at unifying disparate views around one legislative approach.

"We didn't want to get involved in the debate over which version of the human life amendment was the best one to adopt," Bopp says. "We endorsed the human life amendment as in, an amendment to protect unborn human life."

To Bopp's point, congressional records show 67 bills introduced since 1989 claiming to be  human life amendments. The most recent came from Rep. Jo Ann Emerson (R-Mo.) in 2005. That bill did include an exception, specifying that "nothing in this article shall limit the liberty of a mother with respect to the unborn offspring of the mother conceived as a result of rape or incest."

That's Bopp's argument about the human life amendment. There's also another strategy that the platform endorses, the idea of extending 14th amendment rights to "unborn children," essentially giving them the same individual rights as "born individuals."

Bopp argues that this would indeed create greater protections for the unborn. But there is also space for exceptions, he says, in the same way we make exceptions to an individual's right to life right now.

"Are there exceptions to the idea that a person can be killed? Of course there are, it's called justifiable homicide," Bopp says. "If I'm a fleeing felon, I could be killed. There are numerous exceptions to the proposition that you cannot be killed as far as born people are concerned. Conceptually, the same would be applicable to the unborn."

Bopp points to an example where a woman's life is in danger as one such instance.

"There, both the unborn and the mother have a right to life," he says. "If the unborn child's life threatens the mother's, its analytically close to self-defense. There's a threatening of one life from another. Rape and incest can be a grave threat to the mother's health."

Could the Republican platform allow for a full abortion ban? It's a possibility, if the party got behind a human life amendment that made no exceptions, or applied 14th amendment rights in a similarly broad way.

Bopp, however, specifically rejects the notion that the party has thrown its weight behind such a proposal.

"We want the Constitution to provide legal protection to the unborn," Bopp said. "But there's no way the Republican party is going to be able to sort through dozens of versions of what that means legislatively, and get behind one. The pro-life movement can't even do that. "

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Ezra Klein | August 24, 2012