Strategic battles

The pro-life movement won many victories in 2011 but also had disappointments. A high-profile Personhood amendment lost in Mississippi. Heartbeat legislation stalled in Ohio and split the pro-life movement there.

Those wins and losses demonstrated strategic differences among pro-life advocates. Some propose legislation to protect all unborn children with a heartbeat, detectable normally at six or seven weeks. Others work within existing Roe v. Wade allowances and fight legislatively for parental consent, mandatory ultrasound use, and other incremental measures. A third faction only supports measures that declare human beings to be constitutionally protected persons starting at conception.

The three groupings are particularly evident in Ohio, a presidential swing state. There the pro-life movement is fractured, with local Right to Life chapters, including the original one in Cincinnati, leaving Ohio Right To Life over its failure to support Heartbeat legislation.

Dr. Jack Willke, author of the 1971 Handbook on Abortion, started that original chapter. Now in his late 80s and losing both sight and hearing, he recalls 40-plus years of pro-life labor and says of himself and his wife, Barbara, "We don't have the push we once had. It's time to take my armor off and sit on the sidelines." Yet last year he "put on his fighting armor and went back into the fray" to fight for a Heartbeat bill that passed the Ohio House of Representatives in June.

Willke calls the legislation a dramatic move that invites the Supreme Court to reconsider Roe. He says the court won't revisit Roe unless pushed, and Heartbeat is the right vehicle: "There's something magic about the heartbeat. ... [People think] if the baby's heart is beating, then the baby is alive, then we should protect it." But Ohio Right to Life has not supported the legislation, and the general counsel of the National Right to Life Committee testified against it. Willke is a founder of both organizations.

It's still unclear whether Heartbeat legislation will make it through the Ohio Senate-but Willke is optimistic. He stresses the emotional and intellectual power of a fetal heartbeat: "For the average citizen, if there's a heartbeat that baby must be alive." He knows that enacting a pro-life law is only a first step. He cites the experience of partial-birth abortion legislation-passed by various states, struck down by different courts, including the Supreme Court, before finally being upheld by the Court.

Willke expects a Heartbeat law to be struck down by district and appellate courts before the Supreme Court upholds it, with Anthony Kennedy the deciding vote. In that scenario Roe v. Wade dies and states are able to ban most abortions. This would be a victor's crown for Willke, who has just finished writing a history of the pro-life movement: "Now that Mildred Jefferson, Bernard Nathanson have passed ... I'm one-and Barbara-of the few originals who is still alive."

Mike Gonidakis, president of the Ohio Right to Life Society, represents the second pro-life grouping in the state. He says his group neither supports nor opposes Heartbeat legislation. (National Right to Life isn't so diplomatic, calling it "unconstitutional, imprudent, and dangerous.") Gonidakis voices concerns: "Our goal is to overturn Roe, but we have to do it strategically." He fears the current Supreme Court would use the opportunity to come up with "Roe v. Wade on steroids."

In his scenario, Justice Kennedy doesn't swing the right way, and Justice Ruth Bader Ginsburg writes the majority opinion: "She's a pro-abortion absolutist. ... We could lose the Hyde amendment, lose informed consent, lose a late term abortion ban." Gonidakis supports a Heartbeat Informed Consent law that would not ban an abortion of an unborn baby with a beating heart but would require an abortionist to make the fetal heartbeat visible and audible to a mother before she could abort her baby.

Patrick Johnston, a family practice doctor and homeschooling father of eight in Zanesville, Ohio, represents the third grouping. He doesn't try to read Supreme Court tea leaves: "If the Supreme Court says we have to obey an unjust law, we don't have to respect that. They're not God." He says bold leaders must resist unjust Supreme Court rulings, and cites Abraham Lincoln's response to the 1857 Dred Scott decision as an example. Johnston says the current mood of the country is ripe for challenging judicial supremacy and protecting the unborn.

As president of Personhood Ohio, Johnston is working to put a Personhood amendment on the ballot in November: To do that he needs to collect at least 385,000 signatures by July. The amendment is similar to the one that lost in Mississippi but includes language stating that the ban wouldn't affect in vitro fertilization or non-abortifacient contraception.

Personhood referenda have already lost twice in Colorado and once in Mississippi. Will Ohio voters support it? Johnston says yes, if advocates argue for it scientifically and morally: "It's a simple argument to make." That is true, although Planned Parenthood and other well-funded opponents use fear to obscure those scientific and moral arguments. Johnston on his blog criticizes Mississippi voters for failing to pass a Personhood amendment: "Mississippi Vote Brings the Necks of God's Enemies into the Noose of God's Judgment." He attacks the Ohio Heartbeat bill as "A Nice Pro-Life Bill If There Is No God."

Other Personhood advocates use milder language, and these next two years are likely to show which strategy-Personhood, Heartbeat, or incremental-does more to save unborn children. Willke says if Heartbeat passes Ohio, at least 10 states will follow suit. Groups in 12 states are working on Personhood amendments either by legislation or ballot initiative.

Meanwhile, state legislatures continue to pass incremental regulations meant to educate and to place limits on abortion. Their goal, as Amherst professor Hadley Arkes puts it, "is to let the Court, led by John Roberts and Sam Alito, now start upholding, one by one, the restrictions that the legislatures are now freer to make. And step by step, the public comes to agree that this restriction is justified ... so is this one and ... this one."

Read articles from past Roe v. Wade issues from our archives.