Could or Would John McCain Ban Abortion?

A new Barack Obama ad tries to get pro-choice voters alarmed about John McCain’s steadfastly anti-choice record. An announcer argues that “as president, John McCain will make abortion illegal” then shows a snippet of Meet The Press where McCain tells Tim Russert that he favors “a constitutional amendment to ban all abortions.” The ad concludes: “We can’t let John McCain take away our right to choose. We can’t let him take us back.”

Brendan Nyhan says this “distorts” McCain’s position and deems the overall product “misleading.” What’s wrong with it?

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.”

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?