Pro-Constitution, Except When Not

It has been approximately four years and five months now since the right wing discovered the United States Constitution.  To most liberals, it always was the law of the land; conservatives awaited, for some reason, till early 2009.    In October, 2010 Andrew Romano in The Daily Beast described an appearance the previous month before conservative activists at the annual Values Voters Summit by the GOP nominee for U.S. Senate from Delaware.  There,

The Founders’ masterpiece, O’Donnell said, isn’t just a legal document; it’s a “covenant” based on “divine principles.” For decades, she continued, the agents of “anti-Americanism” who dominate “the D.C. cocktail crowd” have disrespected the hallowed document. But now, finally, in the “darker days” of the Obama administration, “the Constitution is making a comeback.” Like the “chosen people of Israel,” who “cycle[d] through periods of blessing and suffering,” the Tea Party has rediscovered America’s version of “the Hebrew Scriptures” and led the country into “a season of constitutional repentance.” Going forward, O’Donnell declared, Republicans must champion the “American values” enshrined in our sacred text. “There are more of us than there are of them,” she concluded.

By now, O’Donnell’s rhetoric should sound familiar. In part that’s because her fellow Tea Party patriots—Glenn Beck, Sarah Palin, the guy at the rally in the tricorn hat—also refer to the Constitution as if it were a holy instruction manual that was lost, but now, thanks to them, is found.

Worship by the right of the Constitution has abated, but nevertheless remains fairly strong.  Last month, John D'Amico noted that the previous month

... 20 House Republicans, along with staffers from nearly 40 congressional offices attended the first meeting of the Congressional Tea Party Caucus. The three premises behind the Caucus, according to Rep. Michele Bachmann (R-Minn.), who emceed the event, are “we’re taxed enough, we spend less than we take in, and we follow the Constitution.” This purported devotion to the founding documents echoes the themes reverberated at the Conservative Political Action Conference (CPAC) in March, where Sarah Palin and former Rick Santorum declared that the Declaration of Independence has given America “a set of principles and values” — and Senator Rand Paul (R-Ky.) urged his party to respect the individual “by going forward to the classical and timeless ideas enshrined in our Constitution.”

Surely, then, congressional Republicans would not want to propose, push, and pass a bill unconstitutional on its face. Or maybe they would.  Last week, the all-male House Judiciary Committee voted out of committee HR 1797, which would ban all abortion post-20 weeks fertilization, or 22 weeks gestation.  Twelve of thirteen Democrats voted against the proposal while twenty of twenty-three (three not voting) Republicans voted in favor after addition of an amendment sponsored by Rep. John Conyers (D-MI) which would make an exception for victims of rape or incest.  It then passed the House on a largely party-line vote.

The bill is named the "Pain-Capable Unborn Child Protection Act" by Republicans fantasizing that the fetus feels pain at 20 weeks, a claim eviscerated by Jodi Jacobson of RH Reality Check. Republicans obviously are averse to science, as demonstrated by their unwillingness to accept the reality of  climate change, characterized by Sean Hannity's recent declaration "it's a crock of s_ _ _" (class act, that guy). Still, if Repub claims about the Constitution were sincere, the belief that a fetus feels pain at that stage would be a necessary, but not sufficient, prerequisite to legislation banning abortion then or beyond.

In its landmark ruling some 40 years ago, the Supreme Court concluded that the state's interest in the second trimester of pregnancy was limited to protecting the health of the mother.  Intervention in the woman's decision from 20 to 24-25 weeks on the basis of perception (accurate or not) of fetal pain, then, would run counter to Roe. In the third trimester, the state can regulate or ban abortion as long as the life or the health of the mother would not be endangered.  Banning the procedure completely after the 20th week would run afoul of the requirement that the state even in the third trimester cannot act to ban abortions which would harm the health of the woman.

The GOP's newest effort to end reproductive freedom is a ghastly piece of legislation medically and constitutionally. If passed by the House, it would not be approved by the Senate.  If passed by the Senate, it would not be signed by the President.  If passed by the Senate and signed by the President, it still would be unconstitutional.  Some rank-and-file conservatives are aware of that; all Repub legislators are.  Blame not, therefore, the amorphous "tea party" but members of Congress who should- and in many cases do- know better.


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