by Rod D. Martin
January 22, 2003

Thirty years after Roe v. Wade, Americans gathered this morning on the National Mall to remember the dead. But this year, they also came to rally the living, because the hope of victory hangs palpably in the air.

The past two years have been good ones for the pro-lifers. George Walker Bush speaks with conviction of creating a “culture of life”, a subtle recognition lacked by many activists that there’s more to eliminating abortion than changing the law. His declaration of a “Sanctity of Human Life Day” each year – on a day when his predecessor annually celebrated a woman’s right to kill her young – is but one small manifestation of this understanding, one among an ever-increasing many.

But Bush has indeed changed the law. In his first month, he re-instituted Ronald Reagan’s “Mexico City Policy” de-funding international abortion providers (to the tune of $425 million). He eliminated federal abortion counseling funding, signed the Born Alive Infants Protection Act, opposed the destruction of embryos for stem cell research, and challenged Oregon’s physician-assisted suicide act. He has promoted adoption; supported abstinence education, crisis pregnancy programs and parental notification laws; and extended state health care coverage to “unborn children”. He has promised to sign the partial-birth abortion ban, fight for a human cloning ban, and continue to appoint men like John Ashcroft to advance the cause and win.

But these are small things compared to what may come, and come very soon.

With the Senate returned to Republican hands, the President may well now 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, and quickly. In the immediate aftermath of an anti-Roe ruling, confusion will reign, and state by state, 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, and toward that end they must pick their battles well. While it is admirable that Republicans propose one year after year, a federal Human Life Amendment cannot possibly get the necessary 2/3 vote in both houses of Congress, at least not any time soon.

By contrast, state constitution Unborn Child Amendments have already enjoyed a good bit of success, and 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.

Likewise, though less formidable than constitutional amendments, regular legislation and popular initiatives should be pursued as well, with the same purpose: to ban abortion “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; local media will rarely cover these fights with the venom left-wing national journalists would pour on a federal effort; and pro-abortion voters will not fight them to full effect, since nothing immediate will be threatened and since NOW and NARAL will be spread thin. Yet the instant Roe falls, these time-bombs will take abortion-on-demand down too.

Some may wonder if these efforts are futile; but Americans will stand for life if there’s a real chance to get something done. Most tune out the abortion issue today because Roe has removed it from the democratic process. Yet when the pro-life movement brilliantly seized the chance to ban partial-birth abortions, millions of seemingly uninterested people – across party lines – sprang to life across America. When meaningful action is possible, the people respond.

But whatever course they take, pro-lifers must be clear: the dawn is likely now at hand. If they are not ready, they may find themselves in worse shape than they have been lo these thirty dark years.