30 years' war
As Roe turns 30, are medical facts and a determined pro-life movement causing legalized abortion to show its age-or is it just becoming more entrenched?
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Even for those who lived through it, most of 1973 has been long since forgotten. Notre Dame topped the college football rankings that year with a perfect 11-0 season. The Sting took home the best-picture Oscar and The Waltons swept five Emmy categories. The average American household in 1973 earned $10,500, the minimum wage was $1.60, and a first-class stamp cost 8 cents.
One event from Jan. 22, 1973, is far from forgotten. The Supreme Court's Roe vs. Wade decision has often seemed to be signed in blood rather than ink. That decision authorized the legal killing of unborn children nationwide, and 40 million have died since then. The decision also animated a political movement that contributed to capturing the White House five times out of seven elections, leading to everything from historic tax cuts to beefed-up defense spending.
Yet the pro-life movement's ultimate legal goal of overturning Roe has proved elusive. Pro-life activists employing three different strategies-legislate, litigate, and demonstrate compassion-have managed to pass laws that protect some unborn children and change the minds of some parents. Those measures have helped to cut the ratio of abortions to live births by more than 25 percent.
Still, about 1.3 million American women-according to Planned Parenthood's research arm, The Alan Guttmacher Institute-have abortions every year, a grim testimony to the continued influence of Roe vs. Wade. On this 30th anniversary of Roe, here's an assessment of the success and failure of various pro-life strategies-and a look to their futures.
The constitutional fix that once seemed like the quickest solution to the abortion problem now looks like an ever-receding horizon. Sen. Jesse Helms, the pro-life stalwart who introduced the first Human Life Amendment back in 1975, just retired from the Senate. His colleague from Utah, Sen. Orrin Hatch, championed his own pro-life amendment for more than two years before seeing it go down to defeat in 1983. Yet another Human Life Amendment is currently languishing in the Senate, far short of the two-thirds vote it needs to pass.
With no total ban anywhere in sight, most pro-lifers have adopted the strategy of saving any lives they can. Last year's Born Alive Infants Protection Act, passed unanimously even by the Democratic-controlled Senate, sought to end the practice in some hospitals of leaving live babies to die after failed abortions. An even more gruesome practice, however-collapsing the skull and suctioning the brains of late-term, unborn babies-somehow failed to win unanimity in the upper chamber. Pro-lifers are hopeful that the new, Republican-dominated Senate will vote quickly to put an end to these partial-birth abortions.
The wish list doesn't end there. Wendy Wright of Concerned Women for America notes that five pro-life bills passed the House of Representatives last year but stalled in the Senate. Besides the partial-birth abortion bill, her group will be lobbying for laws that make it a federal crime to circumvent state parental consent laws (Child Custody Protection Act); punish criminals who attack pregnant women and kill or injure their unborn children (Unborn Victims of Violence Act); and give health providers and insurers the right to refuse to perform, pay for, or counsel for abortion (Health Care Right of Conscience Act).
Though many pro-lifers are praying for a Washington miracle now that the Senate is in GOP hands, others say the real action is taking place at the state level. Ever since the Supreme Court OK'd laws requiring parental notification or consent a decade ago, 43 states have passed such statutes. (Moreover, as a new WORLD study has found, those laws may be statistically significant in reducing teen abortion rates; see p. 22.)
With parental consent practically a done deal, pro-life activists are turning their attention to other statewide statutes. Mary Spaulding Balch, director of state legislation at the National Right to Life Committee, sees three states worth watching in 2003. Both Minnesota and Texas are considering informed consent laws that would include information on fetal pain. Women beyond the 20th week of their pregnancies would have to be informed that babies feel intense pain during the abortion procedure. In Texas, a woman who still opts to abort would have to agree to anesthetize her child before killing it.
In the third state, Virginia, lawmakers are taking a novel approach to ending partial-birth abortion. Rather than outlawing any specific type of medical procedure, the state wants to define the exact point at which a child is considered "born." Under the new statute, once a baby's head emerges into the birth canal, the child will be considered a live human being subject to all the protections of the law. Since partial-birth abortion is performed after that point, the procedure would be defined-and punished-as infanticide in the state of Virginia.
Given the political climate in all three states, Mrs. Balch believes the new laws will probably pass. And when they do, other states may well follow suit. "It's innovative legislation in each case," she says. "Each of them in their own rights can be a standard-bearer for the rest of the country."
Thirty times in 30 years the high court has revisited the issue of "reproductive rights," frequently revising its logic without ever completely reversing the ongoing death sentence it issued in 1973. Indeed, a generation after the landmark decision, pro-lifers have had to content themselves largely with chipping away at the formidable legal wall erected by Roe.
For much of the past 30 years, the legal disappointments seemed almost as frequent as the abortion procedure itself. In the first two decades after Roe, the court repeatedly invalidated any state and local abortion restrictions, creating an almost ironclad right to abort, as long as no public funds were involved. In 1987, when a divided Senate rejected Robert Bork for a seat on the Supreme Court largely because of his conservative views on abortion, it looked as if Roe might be untouchable for another 20 years, at least.
But slowly the legal winds began to shift. The first major breakthrough came in 1989's Webster case, when five justices finally voted in favor of a significant restriction on unfettered abortions: They ruled that the state of Missouri could legally require doctors to determine the gestational age of a baby and thus its viability outside the womb. For pro-abortion groups, the Webster decision was a disaster, marking the first time since 1973 that only a minority of justices had voted to uphold Roe.
Pro-lifers received half a boost in 1992, when the Supreme Court, in Planned Parenthood vs. Casey, upheld Pennsylvania's abortion restrictions, including parental notification, a 24-hour waiting period, and mandatory pre-abortion counseling. But the decisions disappointed those who hoped that the court would seize that opportunity to overturn Roe vs. Wade. Four of the justices went further, stating in their decision that Roe had been wrongly decided and ought to be overturned completely-but five said no.
Then came a series of setbacks: The court upheld buffer zones around abortion business entrances, allowed pro-abortion groups to sue pro-life organizations into oblivion, and even overturned Missouri's carefully crafted ban on partial-birth abortions.
Given the high court's recent schizophrenia and its precarious 5-4 split, both sides are eyeing the aging justices with some trepidation. Conventional wisdom says that one of two Republican appointees will be the first to go: Either Chief Justice William Rehnquist, the lone dissenter in Roe still on the bench, or Justice Sandra Day O'Connor, who decided that requiring parental notification was constitutional but banning partial-birth abortion was not.
Without waiting for a change on the Supreme Court, pro-lifers in 2003 will be pursuing multiple legal tracks. Jay Sekulow, chief counsel at the American Center for Law and Justice, says his group is already writing briefs in support of a partial-birth abortion ban. He expects an immediate legal challenge by the National Organization for Women and the National Abortion Rights Action League, and says the Supreme Court could take the case as early as its next term, which starts in October. Another important case, seeking to overturn extortion and racketeering charges against pro-life organizations, should be decided by June at the latest.
As with legislative efforts, much of the litigation in coming years will take place at the state level. ACLJ is arguing numerous "cutting-edge cases" around the country in defense of individual liberty, and particularly in favor of "conscience clause" rules that allow medical professionals to opt out of abortion procedures. Mr. Sekulow cites a Kmart pharmacist who was fired for refusing to sell so-called morning-after pills and medical students who are penalized for boycotting classes on the abortion procedure: "This is a whole new area of the law that will clearly percolate up to the Supreme Court."
For most of the 1970s and '80s, pro-lifers focused almost exclusively on courts and statehouses in their efforts to undo Roe vs. Wade. Only slowly did they come to realize that given the current political climate, hearts and minds might be changed more easily than laws.
"No one under 30 has ever known a day without legalized abortion, and I think there's a backlash developing now," says Serrin Foster. Her group, Feminists for Life, educates college-aged women about the consequences of and alternatives to abortion. "When Feminists for Life comes to a college campus, we engage students and make them think about something they've not thought about before. We start a conversation about this, 'Is this the best we can do for women?'
"It eats away at people once they start thinking about it. They cannot come to terms with giving a death sentence to an unborn child.... Some people come in with outright contempt for us but walk away saying, 'I agree with 90 percent of what you had to say.'"
The numbers back up Ms. Foster's observations. Among college freshmen-a notoriously liberal lot-approval of abortion has dipped 10 percentage points in the past decade, even as the teen abortion rate itself plummeted nearly 40 percent. And college freshmen aren't alone: A Zogby Poll released in December found that 32 percent of Americans have changed their minds about abortion in the past decade, with 21 percent saying they viewed abortion more negatively, while only 11 percent viewed it more positively. More than two-thirds of Americans now say they would strongly urge a woman not to seek an abortion.
Increasingly, pro-life activists are focusing on the needs of the mother as well as the rights of the child. Patricia Heaton, the Emmy-winning co-star of the hit CBS sitcom Everybody Loves Raymond, serves as honorary chair of Feminists for Life. Her message on the organization's webpage is typical of the new approach. Under the headline "Refuse to choose," a glamorous-looking Ms. Heaton appears with this quotation: "Every 36 seconds in America a woman lays her body down, forced to choose abortion out of a lack of practical resources and emotional support. Abortion is a reflection that society has failed women."
Women Deserve Better, a new marketing campaign launched by six national pro-life groups, takes a similar tack, stressing that "Abortion is a reflection that we have not met the needs of women. This campaign is dedicated to promoting women-centered solutions to significantly reduce abortion and protect women's health."
While "health of the mother" has long been a pro-choice escape hatch from protective abortion laws, pro-lifers are now using the issue to hammer back at their opponents. Armed with studies showing a host of abortion-related health risks, from breast cancer to sterility, pro-life educators are undermining the image of a post-Roe utopia in which abortion is "safe and legal."
Teenage girls, too, are getting the message that abortion is a much riskier procedure than, say, plucking their eyebrows. Thanks to abstinence programs like Sex Respect and Wonderful Days, more teens are learning about the dangers of abortion and the wonders of life within the womb.
And for those who don't get that message in time, the pro-life movement has learned some lessons of its own. As the Operation Rescue model has largely fallen by the wayside, activists are choosing compassion over confrontation. As they have for decades, perhaps 3,000 crisis pregnancy centers across the country continue to offer expectant mothers services ranging from professional counseling to baby formula.
The volunteer counselors at these centers were compassionate conservatives before compassionate conservatism was cool. Many of the larger centers now have ultrasound machines so that pregnant women and boyfriends can see pictures of not just any unborn child but of their child. Some are now reemphasizing a long-neglected alternative: adoption. And many also offer counseling to post-abortive women experiencing guilt over the choice they made. This kind of support at a time of extreme vulnerability may be one of the most important techniques of all, since nearly half of all women entering abortion clinics are "repeat customers."
"We all know anger doesn't change a heart," says Jenny Dixon, vice president of Care Net, a national association of nearly 700 pregnancy centers. "But compassion does. We meet each woman at the point of her need and lend a helping hand. That's riveting to a girl who walks in off the street.... Fighting the battle on the political front is important, but when you're dealing with people who are hurting and afraid, you have a chance to make a real difference."
According to Care Net's statistics, 44,165 women walked into their facilities considering an abortion last year-but opted to give birth instead. The change represents only a small fraction of abortion deaths each year, but activists insist that progress will continue until Roe itself is swept away, just another relic of the '70s like The Waltons and the 8-cent postage stamp.
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