January 22, 2004,
EDITORíS NOTE: Today marks the 31st anniversary of the Supreme Courtís Roe v. Wade ruling. The following piece was written last year, for the 30th. It appeared in the January 27, 2003, issue of National Review.
It is a lucky thing that most pro-lifers profess a religion that forbids despair. It is, of course, possible to be pro-life without being religious (and vice-versa). It is even possible for unbelievers to oppose abortion for the same reasons that impel religious pro-lifers: because the state has a duty to bar the private use of deadly force against human beings, and that's what abortion is. But the purely secular pro-lifer does not have the consolation of believing in an infinitely just, merciful, and loving God.
It is a consolation much needed as Roe v. Wade nears its thirtieth anniversary. If you do not consider abortion a grave injustice, consider what the world looks like to those of us who do. More than 40 million unborn lives have been snuffed out which implies that something like a third of American women have had their sons or daughters killed. A quarter of unborn children die this way.
The most respected political institution in the land, the Supreme Court, says that all this killing is protected by the Constitution. So in the event you persuaded your fellow citizens and elected representatives to do something about the death toll, it wouldn't matter. The courts would just unleash the abortionists again, and lecture you to accept the judicial resolution of the issue. Even peaceful protest outside the places these killings occur is uniquely circumscribed.
Many people agree with you that abortion is wrong. But most people, whatever their view of abortion, do not want to hear a word about the subject. Most people, whatever their view of abortion, regard people like you as fanatics.
UPS AND DOWNSTen years ago was the nadir of the movement. The abortion rate had kept climbing: In 1990, 1.6 million abortions were committed. Public opinion kept moving left. By June 1992, Gallup estimated that 34 percent of the public believed that abortion should be legal in all cases. That same month, the Supreme Court reaffirmed Roe, albeit with qualifications, in Casey v. Planned Parenthood. It did so, moreover, at the direction of three Republican appointees whom many pro-lifers had supported in the hope they would overturn Roe.
Later that year, the most pro-abortion president since Roe was elected. On his first day in office the same weekend as the twentieth anniversary of Roe he issued a series of executive orders liberalizing abortion law. It was widely suggested that he had been elected in part because the public supported legal abortion, and that Republicans would have to come around if they were ever to win the White House again.
But the early 1990s turn out to have been high tide for "abortion rights." The annual number of abortions peaked in 1990. Fewer doctors are performing abortions, and fewer medical students want to learn how to perform them. Surveys attribute this reluctance more to moral qualms than to fear of anti-abortion violence or protest.
Even at the peak, most Americans disappointed pro-abortion ideologues by persisting in seeing abortion as a tragedy rather than a routine medical procedure. Parents do not dream of one day telling people about "my son the abortionist." Few men brag about pressuring their girlfriends or wives into having abortions. Unease about abortion is so widespread that the politicians most committed to keeping it legal rarely use the word, preferring to talk about "choice." Abortion is the right that dare not speak its name.
The unease has only grown. Since 1995, the polls have been moving in the pro-life direction. Almost as many Americans now call themselves "pro-life" as "pro-choice." The numbers appear to have been driven by the debate over partial-birth abortion a debate in which, for the first time, it was the pro-choicers who looked like extremists to middle-ground Americans. Most Americans still think that abortion should be legal when a pregnancy results from rape or incest, or threatens the life or physical health of the mother. But a majority would ban most abortions. Only a quarter of the population now believes abortion should be legal in all cases.
Even at the high tide of pro-choice sentiment, there was never much evidence that opposition to abortion was politically dangerous. Exit polls have always shown that pro-lifers are more willing to vote on abortion than pro-choicers are, and that pro-life candidates therefore have a substantial advantage. That Republicans can win while opposing abortion is now even clearer. For the first time since Roe was decided, the president, the Senate leadership, and the House leadership are all pro-life. Two months ago, pro-life Republicans won four hotly contested Senate seats in Georgia, Minnesota, Missouri, and North Carolina partly on the abortion issue. On this thirtieth anniversary of Roe, morale among pro-lifers is high.
The pro-choice side continues to hold the political high ground in one very important sense: It's the party of the status quo. That makes it easy to portray the pro-lifers as the aggressors, when what the public most wants on abortion is peace and quiet. This perhaps explains why Democratic senators are happy to grill Republican judicial nominees on whether they support Roe, while Republicans hardly uttered a peep about the Clinton administration's explicit pro-Roe litmus test for its nominees. In his confirmation hearings, attorney general John Ashcroft, following White House instructions, said that he "accept[s] Roe and Casey as the settled law of the land": "The Supreme Court's decisions on this have been multiple, they have been recent, and they have been emphatic."
That was a substantial concession. But it was also an exception for Bush, who has surprised and gratified pro-lifers with his constancy. Many congressional Republicans were ready to abandon pro-lifers by supporting federal funding for research on "surplus" embryos from fertility clinics. Bush came out against such funding. He also called for an outright ban on the cloning of human embryos, even though many scientists want to be able to do research using (and in the process destroying) these embryos.
President Bush cut off government funding for international organizations that commit abortion or advocate it. He signed a bill clarifying that the child who somehow survives an abortion is entitled to legal protection. This year, Bush is expected to seek a bill to ban partial-birth abortions. Should there be a vacancy on the Supreme Court, no doubt he will nominate someone whose judicial philosophy could be expected to please pro-lifers. (The alternative would be to throw away his hard-won credibility in an instant.)
Pro-lifers should push for more. The law on survivors of abortion ought to be toughened. Breaking it should entail penalties, including the withdrawal of federal funds from hospitals. Pro-lifers should move, as well, to ban all elective abortions past, say, the twentieth week of pregnancy. They need to do political work outside Washington, too, especially seeking new recruits among blacks and Hispanics who oppose abortion.
ASPECTS OF A DEBATEBusy as the pro-life movement is with its traditional work of combating abortion, it is also having to fight new battles. In the last two years, the issue of research on human embryos has suddenly moved to the forefront of pro-life concerns. The public's initial reaction to cloning embryos, as measured in polls, has been opposition. But that opposition has to be mobilized now if it is not to dissipate as cloning comes to be seen as normal.
The embryo-research debate simultaneously is, and isn't, the same as the abortion debate. In both cases, pro-lifers are acting to vindicate the same principle: that human beings, from the moment they come into being as distinct organisms, have a right not to be killed. Supporters of the research, meanwhile, have sometimes suggested that a society that allows abortion has no principled basis for forbidding it. Both sides in the embryo-research debate, however, have taken pains to separate it from abortion.
A woman's rights over "her own body" cannot be asserted here, and people who want the research to be legal do not claim to be "personally opposed" to it. As such, the debate has turned, more than the abortion debate, on the moral claims of the embryo. Many research supporters say that human embryos deserve "respect," but that this respect cannot be made so absolute as to preclude their intentional destruction for good ends. One gathers that respect for human embryos would instead be manifested in discussions of the importance of having respect for them.
Whatever the rhetoric employed to advance it, the argument for going ahead with the research rests on the premise that merely belonging to the human species does not confer a right not to be killed. This also, ultimately, has to be the argument for a "right" to abortion (although other, prudential arguments could be made against legal prohibitions). On this view, human beings are not intrinsically worthy of protection. If particular human beings may be worth protecting, it is on the basis of accidental qualities they may have: sentience, independence, rootedness in a community, size, or what have you.
The trouble for people wishing to defend these propositions is that these qualities come in degrees. That means, first, that there is no non-arbitrary point at which to start granting protection: How old must a person be, how well must his mind function, for him to enjoy a right to life? Second, on this account there is no basis for asserting an equality of rights among people with different levels of the particular quality held to be crucial as Lincoln observed in another context. Roe is undemocratic not merely in a procedural sense.
Some contemporary philosophers, most notoriously Peter Singer, have grasped the difficulty of containing the principle behind abortion and embryo research. They concede that the argument for abortion is also the argument for outright infanticide. This is not a reason to prohibit abortion, they say, but rather to reconsider infanticide. American law has not yet achieved this dreadful consistency. But it is moving closer.
It has often been said that the Court's error was to fast-forward a process of liberalization that was already taking place democratically. That's not true either. Before Roe, a few states had substantially weakened protections for the unborn. But the movement for liberalization then stalled, with many more states voting it down in legislatures and in referenda. Justice Blackmun, the author of Roe, tried to downplay its radicalism by depicting it as consistent with American history. Much of the opinion is dedicated to demonstrating that American law never sought to protect the unborn. The shoddy historical work on which he relied has since been thoroughly discredited.
The truth is that Roe was a breathtaking power grab by the Supreme Court, allowing abortion at any stage of pregnancy, nullifying laws in all fifty states, and going far beyond anything contemplated by public opinion before or since. Not even law professors who favor constitutional protection for abortion believe that Roe was well reasoned. Indeed, an academic cottage industry has spent thirty years trying to devise better constitutional foundations for Roe's result. (What this effort has lacked in plausibility, it has made up for in determination.)
RELENTLESS LOGICContrary to John Ashcroft, the Court's abortion jurisprudence is not settled law, either. The latest abortion decision, issued the year before Ashcroft spoke, kept partial-birth abortion free from state bans. It was a 5-4 split in which the principal authors of Casey disagreed with some bitterness about Casey's meaning. Casey itself reworked Roe in significant ways, and hinted that a majority of the Court thought that Roe was a mistake.
But it is a mistake from which the Court is unwilling to retreat. The lack of a settlement in abortion law the fact that Roe has exposed the Court to decades of intellectual ridicule and political resistance seems to be experienced by the Court as a scandal. When the Court reaffirmed "abortion rights" in Casey, it cited the need for stability in law, which is a real virtue. But it also said that to admit error and reverse itself on Roe would be to undermine its own power unacceptably.
When they struck down state bans on partial-birth abortion, the federal courts showed just how far they were willing to go to protect their abortion jurisprudence. One federal judge noted that such bans were enacted in order to set a firm barrier against infanticide and that, he implied, was not possible legally. Another disputed the characterization of a baby partly out of the birth canal as partly born: "A woman seeking an abortion is plainly not seeking to give birth." The baby, whatever the stage of pregnancy, counts for nothing independent of the mother's desires.
When the Supreme Court followed these judges' example, it put a lot of weight on the mother's health. But the Court wasn't saying merely that a woman has a right to a partial-birth abortion when it is the safest way of dealing with a threat to her health: It said that a woman in the eighth month of pregnancy who wants her baby dead, whatever her reason, has a right to have that baby killed in whatever way is safest to her. What if the safest way is to deliver the baby, fully, and then kill it? Yet another federal judge had asked what difference it made, from the perspective of the fetus, whether part of its body were outside the birth canal when his skull was punctured and his brain sucked out. What difference would it make if his whole body had been delivered? The Born-Alive Act signed into law last year was written to prevent this next logical step from being taken. But it is not yet clear what effect that act will have.
When pro-lifers began their campaign against partial-birth abortion, they knew that they ran the risk of legitimizing infanticide rather than delegitimizing abortion. In the courts and in the academy, that danger may be coming to pass. This is thus as important a moment for pro-lifers as any in the last thirty years. They have new opportunities in Washington. If they succeed in banning cloning, they can establish the principle that human beings have a right to life regardless of their age, size, wantedness, location, stage of development, or condition of dependency. They can save some unborn children, as even fairly modest state laws appear to have done.
What happens if they lose? The idea that widespread infanticide could ever come to America is, of course, crazy. Babies are cute, they cannot be mistaken for globs of cells, and there is a natural human instinct to protect them. Other cultures may not have treated them so tenderly, to be sure. But that could never happen here. We're nice people.