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The Candidates Clash on Abortion Law:
A Window Into Their Capacity to Listen


Tuesday, Oct. 19, 2004

During the second presidential debate, John Kerry and George W. Bush locked horns on a variety of issues, foreign and domestic. One example was the question of abortion.

The fact that Kerry and Bush disagreed with each other about reproductive choice could not have been news to anyone. Quite revealing, however, was the manner in which each of the contenders responded to a question framed from the perspective of a pro-life voter.

The candidates' answers reflected, respectively, the presence or absence of an important leadership skill: the ability to listen to another person with whom one disagrees, and truly to hear what that person is saying.

The Question and the Candidates' Exchange

Here was the question: "Senator Kerry, suppose you are speaking with a voter who believed abortion is murder and the voter asked for reassurance that his or her tax dollars would not go to support abortion, what would you say to that person?"

Kerry's response: "…. First of all, I cannot tell you how deeply I respect the belief about life and when it begins. I'm a Catholic, raised a Catholic…. But I can't take what is an article of faith for me and legislate it for someone who doesn't share that article of faith, …. as a president, I have to represent all the people in the nation."

Kerry added that funding to support constitutional rights is crucial because "you don't deny a poor person the right to be able to have whatever the Constitution affords them if they can't afford it otherwise."

Bush's response began, "I'm trying to decipher that." He then continued: "I signed the partial-birth - the ban on partial-birth abortion. It's a brutal practice. It's one way to help reduce abortions. My opponent voted against the ban. I think there ought to be parental notification laws. He's against them…."

Kerry replied: "Well, again, the president just said, categorically, my opponent is against this, my opponent is against that. You know, it's just not that simple. No I'm not. I'm against the partial-birth abortion, but you've got to have an exception for the life of the mother and the health of the mother under the strictest test of bodily injury to the mother. Secondly, with respect to parental notification, I'm not going to require a 16-or 17-year-old kid who's been raped by her father and who's pregnant to have to notify her father. So you got to have a judicial intervention. And because they didn't have a judicial intervention where she could go somewhere and get help, I voted against it."

Bush's final reply: "Well, it's pretty simple when they say: Are you for a ban on partial birth abortion? Yes or no? And he was given a chance to vote, and he voted no. And that's just the way it is. That's a vote. It came right up. It's clear for everybody to see. And as I said: You can run but you can't hide the reality."

What the Candidates' Answers Revealed

Bush here attempted to portray Kerry as a left-wing extremist on abortion. Kerry's response, however, regarding partial-birth abortion, a subject on which I have written a separate column, matches exactly the current state of law.

As Kerry's remarks reflected, pursuant to established precedents - including Roe v. Wade - a statute prohibiting abortion, in any trimester, is invalid if it does not allow an exception for a woman whose life or health would be jeopardized by carrying her pregnancy to term. Stenberg v. Carhart reaffirmed this principle about four years ago in the specific context of a Nebraska "partial-birth abortion" ban that closely resembled the one on which Kerry voted no.

Kerry's elaboration regarding parental notification for minors seeking abortion - a subject on which I have also written a column - similarly reflects existing case law. The Supreme Court of the United States has made clear that parental notification requirements lacking a judicial bypass opportunity are unconstitutional. Pregnant minors, in other words, must have the option of appearing before a judge to argue against having to notify her parents that she wishes to terminate her pregnancy.

After hearing Kerry's explanations for his votes, neither of which were extremist, President Bush gave his classic snicker coupled with the newly-minted slogan, "[y]ou can run but you can't hide the reality."

President Bush's point was that Senator Kerry was needlessly complicating and obfuscating on a straightforward issue: either one opposes or one supports the brutal practice of partial-birth abortion, and Kerry obviously supports it because he did not vote to ban it.

But in fact, that conclusion is entirely unsupportable. Kerry's vote simply reflects a respect for settled law - as well as for women's lives and health. In contrast, Bush's support for the Partial Birth Abortion Ban Act, as written, flouts the Constitution and asks a woman literally to die in order to give birth.

What's Behind President Bush's Refusal to Take Constitutional Law Into Account?

One interpretation of this exchange about abortion is that President Bush does not actually understand the nuances of our legal system and accordingly cannot comprehend the need to ensure not only that one likes a proposed piece of legislation but also that it comports with settled constitutional law.

I would not rule out this possibility, though it would hardly be a source of comfort to learn that the President of the United States was so ignorant and simpleminded.

Nonetheless, I think the more likely explanation of Bush's words is not a lack of intelligence or knowledge but rather, a failing of an entirely different sort.

My alternative interpretation of President Bush's response is that he has no respect for differences of opinion. On this account, President Bush views abortion as murder, particularly when it occurs very late in pregnancy. Furthermore, as the President is no doubt aware, most Americans share the view that late-term abortions raise more serious moral questions than earlier abortions.

Therefore, goes the subtext of Bush's response, to reject a law that would prohibit late-term abortions is necessarily to place oneself on the far left of the political spectrum and to demonstrate support for all abortions, no matter how brutal and unjustified.

Bush's Fallacy: Counting Votes, Not Reasons

Consider the various ways in which this subtext shows the President's failure to hear what the Senator was saying. First, Bush either ignored or missed the fact that Kerry said he opposes "partial-birth abortions." Second, Bush completely disregarded Kerry's explanation for why he did not vote in favor of the partial-birth abortion bill that came before Congress.

In missing that explanation, moreover, Bush refused to acknowledge in any way the women whose survival demands a late-term abortion.

Bush may in fact believe that pregnant women, if necessary, should die for the sake of their unborn children. Yet even if this is the case, it is still notable that he showed no sensitivity for the self-evidently tragic choice faced by a woman and her family in such a situation, regardless of the outcome.

Bush heard only that Kerry voted no. Apparently, only the bottom line mattered, and Bush stopped listening after that point.

But why, the reader may wonder, should it matter whether the president can listen to people with whom he disagrees? It matters because this ability signals the capacity to empathize.

When Kerry made a point of demonstrating respect for the pro-life position that he does not happen to share, he included pro-life people within the community that he intends to lead and represent as President of the United States. Rather than being President only of those who share his views and concerns, in other words, he aims to be President of everyone.

President of Everyone Or President of Only Some?

There is reason to believe that Bush does not share this aim of representing all of the people. Unable to hear the dreams and fears of those with whose values he disagrees, Bush seems to consider himself President of only those who fall into his ideological camp.

Such an attitude can be demoralizing for people outside that camp and appears to belie the President's characterization of himself during the first election as a "uniter and not a divider." A uniter, most of all, is one who can empathize with the whole range of individuals who make up our nation.

When A President Without a Mandate Ignores the Nation's Will

After the last election - arguably the most contentious and controversial in the history of this country - Bush had to have known that he did not have a so-called "mandate." A majority of voting Americans had chosen a very different outcome and did not support Bush's values, to the extent that they clashed with those of Vice President Al Gore. This fact, some hoped, would prove humbling to Bush and would lead him to curb the influence of movement conservatives on his administration.

It did not work out that way. Notwithstanding the reality of how Bush came to power, he behaved - once there - like someone who had won by a landslide. His approach to the environment, to women's rights, to the distribution of wealth in this country, and to foreign policy - to name but a few "hot button" issues - unapologetically reflected a core "conservative" approach. In observing Bush's behavior, many of those people who had never shared his values found themselves not merely disappointed in his actions but truly enraged.

The growing rage of many Bush detractors is the product of feeling that one's views and statements (such as the statement that one makes in voting, with a majority of voting Americans, for the other guy) do not interest the President at all.

Another election will take place in a few weeks, and we will see whether the debates made a difference. But skill at public speaking may not ultimately be the most significant stylistic difference on display in these three clashes.

It may instead be the ability to listen carefully to what people on the other side are saying and to understand where they are coming from. That ability should be a qualification for the presidency - for those who lack it will inevitably fail to communicate effectively with foreign leaders, and American citizens of opposing views, alike.

Ironically, this difference may have emerged most clearly on the question of partial-birth abortion, on which the candidates largely agree. Their exchange on this issue highlighted well a significant capacity in which our current Commander in Chief appears to be sorely lacking.

Sherry F. Colb, a FindLaw columnist, is Professor and Judge Frederick B. Lacey Scholar at Rutgers Law School-Newark. Her earlier columns may be found in the archive of her work on this site.

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