by Rod D. Martin
January 22, 2001
The sun came up today, for the first time in nine years. That’s how many pro-life Americans feel this day, the first Roe anniversary post-Clinton. For the first time in a long time, there is real hope, a hope that the killing may stop.
George Walker Bush is unabashedly a man of pro-life conviction, a man of deep (if somewhat new) faith, and a man who knows how to get things done. The question is not so much of his intentions, but of his ability to carry those intentions through; and, to no small extent, his ability to avoid mistakes. Two days into his presidency, he is already justifying hope.
This morning – a morning annually celebrated by his predecessor as a triumph of “women’s rights” – Bush signed orders re-instituting Ronald Reagan’s “Mexico City Policy” de-funding international abortion providers (to the tune of $425 million), as well as eliminating federal funding for abortion counseling. A partial-birth abortion ban is on the horizon, and John Ashcroft will likely be confirmed as Attorney General this week. In time, the President will undoubtedly get his chance to re-mold the Supreme Court: the most likely immediate retiree, Sandra Day O’Connor, is the key vote upholding Roe. And if he succeeds in replacing her with, as he says he wants, “someone like [Justice Antonin] Scalia,” literally everything will suddenly change.
The only question is, “change how?”
To hear some activists talk, overturning Roewould end abortions in America. The reality is far more complicated. While Roe did legalize abortions everywhere, overturning Roe does not criminalize them: it restores the status quo ante. And even that is only true of federal law: state legislatures have been quite active since 1973, and the post-Roe legal landscape is truly byzantine.
Overturning Roe shifts abortion from Washington back to the states. In some places, nothing will change. In others, all abortions will be outlawed: a number of states have passed constitutional “Unborn Child Amendments”, which protect preborn life “to the maximum extent consistent with federal law.” Still others have a patch-work quilt of laws, many from pre-Roe years, which will regulate abortion in varying and unpredictable ways.
Pro-life activists better figure all this out. In the immediate aftermath of an anti-Roe ruling, confusion will reign, and the first people in court are likely to get their way. But just as important as preparing a coherent post-Roe strategy, pro-lifers must seize key legal ground now.
The partial-birth abortion fight has shown the way: Americans will stand for life if there’s a real chance to get something done. Most tune out the abortion issue today because Roe short-circuited the democratic process. Yet when the pro-life movement brilliantly seized the chance to ban partial-birth abortions, millions of seemingly uninterested people sprang to life. This was shocking not only in numbers but in bi-partisanship: in Arkansas, for instance, a state House of Representatives with only 24 Republicans passed a partial-birth ban 88-3. When meaningful action is possible, the people respond.
Clearly pro-lifers have a way forward. The question is how and whether they will seize it.
In answering that question, they need to show some wisdom. While it is admirable that Republicans propose one year after year, a federal Human Life Amendment may never get the necessary 2/3 vote in both houses of Congress. The geographical and political divisions of the nation remain too stark, and a national battle of this sort would have to be fought on ground chosen by Dan Rather and Ted Turner.
By contrast, state Unborn Child Amendments have enjoyed success; and in the new climate, pro-lifers should push them everywhere they can. Win or lose, such efforts will invigorate the troops, spread thin Planned Parenthood’s resources, and raise vital awareness on which to build for the future. They will also face coverage by local media rather than national Leftists.
Regular legislation and popular initiatives should be pushed as well, with the same purpose: to ban what an earlier generation of feminists called “child murder”, but to do it “to the maximum extent consistent with federal law.” These are the magic words: they render the acts dormant until some future, better time. The current Supreme Court cannot overturn them. A future Supreme Court will give them life.
And Congress needn’t be silent. Even before Roe is overturned, nothing prevents Congress from impeaching pro-death Supreme Court justices, or from taking away the Court’s jurisdiction over abortion; nothing, that is, except the lack of a large pro-life majority. The more successful the efforts in the states, the sooner that majority will exist.
But whatever course they take, pro-lifers must understand: they have the best chance in almost thirty years of getting their way. They better be ready.