Using 'The Arm of Flesh': The Fallacy of Attacking Ron Paul on Abortion

by Jerri Lynn Ward, J.D.

The purpose of the state is supposed to be to protect life, liberty and property and to settle disputes. Today, we have a government that protects killing, and at times, even finances it. The growth and scope of our government is totally out of control and fails the test for a limited government in a free society. ~ Ron Paul, Challenge to Liberty: Coming to Grips with the Abortion Issue

Ron Paul has long been an "unshakeable foe of abortion." While pro-life groups, in an effort to overturn Roe v. Wade, have long engaged in the fruitless struggle to elect the presidential candidate who will then appoint the "just right" jurist to sit on the Supreme Court, Ron Paul has repeatedly introduced legislation which affirms that life begins at conception, legislation that would exclude the issue of abortion from the jurisdiction of the federal judiciary, thereby overturning Roe v. Wade and returning the issue to the proper authorities, the individual states.

In light of this, it is unfortunate that the respected and stalwart American Right to Life has stooped to condemning Ron Paul for his principled and constitutional approach to the abortion issue by using fallacies, defamatory and villainous rhetoric, and the kind of reasoning characteristic of the sophists of pagan Greece. According to ARTL, Ron Paul’s pledge to oppose abortion is inadequate because he refuses go along with ARTL’s support of a proposed federal law that would authorize the use of the 14^th Amendment to protect the pre-born. Because Ron Paul recognizes and publicly states that this approach is not constitutionally proper and is a usurpation of state authority, ARTL’s director of research makes the ludicrous (and viciously false) claim that "Ron Paul agrees with the central finding of Roe v. Wade itself."

While the absurdity of such a claim is clear on its face, let me also add that the central finding of Roe v. Wade would never have seen the light of day were it not for the overbroad application of the 14^th Amendment by activist judges. That the 14^th Amendment has been the most effective, dangerous, and misapplied tool of activist judges is something that Conservatives once understood. Such an understanding was reaffirmed in 1977 when Conservatives lionized Raoul Berger’s release of Government By Judiciary, The Transformation of the Fourteenth Amendment, which demonstrated completely and unequivocally that the 14^th Amendment had long been construed far too broadly, resulting in a "vast array" of unconstitutional decisions, including Roe v. Wade. In fact, Berger made the case so well in the book and in his rebuttals to its critics that the critics began, in the words of Forrest McDonald, "to assert that neither the words of the Constitution or the intentions of the framers are any longer relevant."

This truth has apparently either (1) gone down the memory hole or (2) Conservatives have become every bit as cynical and unprincipled as the left-leaning activist jurists they demonize. Conservatives now want to pass a law that will approve solidifying the federal judiciary’s chokehold on the abortion issue by using, to their own ends, the same overbroad construction of the 14^th Amendment that generated Roe v. Wade.

It seems apparent to me that nationalizing the issue of abortion resulted in over 50 million abortions since 1973. States that would be saving babies right now (were Ron Paul’s legislation passed when Republicans controlled Congress and the Presidency) have been able to do nothing but pass incremental measures seeking to slow down, but not end, the death of these babies who reside in their mother’s wombs. That is why I can’t understand why ARTL and others are determined to keep the issue in thrall to the same courts who brought about this tragedy.

The most effective solution is contained within the bills which Ron Paul has proposed session after session. His bills, which require only a simple majority vote, acknowledge that human life begins at conception and that it is within the authority of the States to protect that life. The legislation would deny the federal judiciary jurisdiction of the abortion issue, lawfully and constitutionally removing the power to overturn State laws which protect pre-born life. Under his legislation, Roe v. Wade would be dead, as pro-life activists have wanted for decades.

In response to Ron Paul’s proposing the above legislation, ARTL makes the laughable claim that he "is pro-choice, state-by-state. He believes states should be allowed to keep abortion, which is like allowing states to keep slavery." I can only assume that the ARTL did not get the 10th Amendment memo from the Tea Party. In fact, here we have Conservatives using the very accusations thrown at the Tea Party by race-card-playing leftists who assume that if we don’t unconstitutionally allow the federal government to dictate to the states what they may and may not do, Jim Crow laws will "rise again."

I am not as cynical about our constitutional form of government as ARTL appears to be. I am confident that pro-life people will be very successful in ending abortion in their own states once the federal grip on the issue is broken. Moreover, I agree with Raoul Berger’s statement: "I cannot bring myself to believe that the Court may assume a power not granted in order to correct an evil people were, and remain, unready to cure. Justification of judicial usurpation – the label Hamilton attached to encroachments on the legislative function – on the grounds that there is no other way to be rid of an acknowledged evil smacks of the discredited doctrine that the ‘end justifies the means.’" Berger went on to say: "Then there are the costs to constitutional government of countenancing such usurpation. As the Court itself has demonstrated, unconstitutional action establishes a precedent to cure a manifest evil, as Washington and Hamilton warned, that encourages transgression when such urgency is lacking." Berger’s point aptly applies to the proposal advanced by the ARTL and others to retain this usurped power (as opposed to restoring lawful federal authority) to regulate abortion at the national level, rather than the constitutionally appropriate state level. Such a "hair of the dog" solution is every bit as delusional as "fixing" our economy with the same monetary policies that crippled it, but too many are blinded by the appeal of manipulating illicit statist power to see it.

More importantly, as a Christian, I believe that once we shake off the chains placed upon us by the modern day pharaohs in Washington and return authority over this matter to its rightful place, we will be blessed by God and empowered by the Holy Spirit to end abortion within each State. I do not believe that He will so bless us if we continue to use and co-opt the cynical, despotic, lawless tactics of our opponents. Such power-concentrating tactics use the arm of man in the same manner as the builders of the Tower of Babel did in their efforts to reach heaven – but trusting in "the arm of flesh" always brings God’s curse, never His blessing (Jer. 17:5). Asserting a messianic role for the federal government bespeaks practical atheism and an unthinking return to Hegel’s view that the state is god walking on earth, wherein Christians who should have known better inexplicably choose to fight in Saul’s armor. The mindset of those who are willing to undermine rather than redeem constitutional government, and who seek to use the swollen statist federal leviathan as the means to their ends was aptly skewered by one of Cromwell’s chaplains, John Howe, in his sermon, The Outpouring of the Holy Spirit, using words that still ring across the centuries:

"An arm of flesh signifies a great deal when the power of the almighty Spirit is reckoned as nothing."

January 5, 2012

Jerri Lynn Ward [send her mail] is an attorney practicing in Austin, Texas. She is the President of the Travis County Chapter of Texas Right to Life and was named Texas Right to Life’s Pro-Life Attorney of the Year in 2006.

Copyright © 2012 by LewRockwell.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.