Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Sunday, March 27, 2011

Thirty-eight Years and Counting . . . But Still Reason to Be Hopeful!

On Friday we celebrated the Feast of the Annunciation, a liturgical celebration that, aside from Easter, could be described as the preeminent feast of hope.

 Just over two months ago we marked the thirty-eighth anniversary of Roe v. Wade, an occasion of profound sadness, and for some, even despair.  I had meant to post this entry at that time, but it fits nicely with Greg Sisk’s recent, hopeful post, The Pro-Life Generation.

Just prior to Roe’s anniversary, Russell Shaw published a sobering and largely accurate commentary here on why the barbaric legal regime created by Roe is still with us notwithstanding the opinion polls indicating that the country would like to be rid of it.

The polling data show that a majority of Americans don’t support the virtually unlimited access to abortion that now exists. Yet people who are opposed to abortion, at least tepidly, regularly vote for pro-choice candidates. The result is this prolife/pro-choice seesaw. Up and down—it’s been that way for 38 years. So let us return to our question: How come?

It appears to me that the only possible explanation for this voting behavior is that, no matter what many people say they believe about abortion, when push comes to shove the issue doesn’t carry all that much weight with quite a few. For them, clearly, it is not the great moral issue of our times that convinced prolifers—and not a few prochoicers as well—consider it to be.

And the fact that it isn’t can only be understood as a reflection of the value such people assign to human life before birth. Not that it’s unimportant exactly, but that in the end it’s less important than something else.

I describe Shaw’s comments as “largely accurate” because some voters may be convinced (and not without some reason) that political action against abortion will be unavailing.  Most voters probably don’t think in terms of constitutional law, though Roe’s status as a constitutional decision is an obvious impediment.  What they do see is that Roe remains in place despite all efforts to the contrary.  Aren’t pro-life efforts on the legal front ultimately doomed to failure?  Why “waste” my vote on a futile gesture at the ballot box?

Thus, Roe’s resilience and the perceived lack of pro-life progress can be disheartening.  It can engender an abortion fatalism or resignation to the inefficacy of pro-life legal measures that becomes a kind of self-fulfilling prophecy.  Convinced that pro-life politicians can make no difference, voters turn to “something else” (as Shaw says) in making their political calculation at the ballot box. 

Contrary to this outlook, a compelling case can be made that the restrictions on abortion enacted over the course of Roe’s reign have had an enormous influence on the frequency of the procedure.  I refer here in part to the path-breaking work of political scientist Michael New (see here, here, and here) showing that modest restrictions like parental notification requirements and waiting periods and prohibitions on the use of government funds to pay for abortions have significantly reduced the incidence of the procedure in states that have enacted them.

Other pro-life gains include the Partial Birth Abortion Ban, the Born-Alive Infants Protection Act, and the Unborn Victims of Violence Act.  Cynics might protest that these statutes prevent few if any actual abortions, and that, to the extent they have any value at all, their value is entirely symbolic, serving only as rallying points and fund-raising opportunities for both abortion supporters and opponents.

There is some truth in this observation, but the value of these legislative acts goes beyond mere symbolism.  The correct way to view these statutes is as a putting in place the legal foundation for building a culture of life (see here).  They are necessary first steps to establishing in federal law the principle that the unborn child counts for something – that he or she is not simply a disposable object – and a reminder that the right in Roe, insofar as it exists at all, is a right to be unburdened by pregnancy, not the right to a dead child. See Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, 99-100 (1976) (White, concurring in part and dissenting in par).

Few MOJers will argue with Shaw’s conclusion that the reality of the present situation simply “underlines the magnitude of the task of education and persuasion facing the prolife community after 38 years.”  At the same time, Greg’s post reminds us that pro-life education efforts are already bearing fruit.  The reason for hope is on the vine. 


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I hope that "a right to be unburdened by pregnancy" is where anti-abortion and pro-choice individuals can come together under a truly pro-life banner. One that supports and encourages the nurturing of all new life while at the same time doing everything they can to support the dignity in the life of all women.

Supporting programs to make unplanned pregnancies more common, ending the stigmas that still surround young pregnancies (while emphasizing the reasons that it's not wise to get pregnant too young), making fathers responsible for bearing more of the burden than they currently do, making it easier for mothers to get an education and a professional career, alleviating economic situations that make pregnancy and parenthood more difficult for the poor...these are things which can found a new pro-life movement truly dedicated to all human dignity and recognizing both the value of the life of the unborn and the freedom of women.

Posted by: Andrew MacKie-Mason | Mar 27, 2011 7:24:22 PM

Excuse me, I should have said "making unplanned pregnancies less common," of course.

Posted by: Andrew MacKie-Mason | Mar 27, 2011 7:25:23 PM

In watching the film about Students for Life, I was struck by how rapturous it is and how it gives the impression that when abortion is "abolished," the country will be transformed into one where every life is cherished and all is happiness and goodwill. Has anyone projected a likely scenario if, say, Roe v Wade is overturned? That will not, of course, "abolish" abortion, but merely turn it over to the states. If the students are tired of the "38-year battle" that began with Roe, I don't think they are going to find the battle miraculously at an end if Roe is overturned. If anything—or so it seems to me—the battle will intensify, with separate battles in every state. And in those states where abortion is banned, does anyone expect the struggle will be over, any more than the struggle ended when Roe was decided? I think as long as there are "pro-aborts" and "anti-aborts," the ugliness will continue. I agree with Andrew MacKie-Mason. There has to be some coming together of both sides. Abortion will not be "abolished" if it is criminalized in some states and not others, or if somehow it is criminalized in *all* states.

Posted by: David Nickol | Mar 28, 2011 9:58:30 AM

I agree with David that a Roe reversal would be just the beginning, not the end, of a long struggle. I add two points.

First, the mistaken impression that he identifies, i.e., that a Roe reversal would ban abortion, is common among grassroots activists on both sides and among average Americans in the middle. The misimpression is also manipulated and reinforced by elites on both sides.

For example, pro-choicers and Democratic candidates try to energize voters with the threat that their freedom turns on Supreme Court justices and thus on Presidential and Senate races. But no, an outright Roe reversal would not affect California, New York, Illinois, or so many states that would not pass a ban in any foreseeable future. And for many states that might ban, most of the population is within a medium drive to city that has access, such as Indiana/Chicago, Virginia/DC/Baltimore. Maybe Texas, Louisiana, and Mississippi are an issue.

On the pro-life side, many are happy to let the grassroots fervor build at the prospect that the ultimate goal is Roe reversal. One asymetry, though, is that reversal is a necessary, but not sufficient step, so focusing solely on that first down is not as deceptive in its results, but is equally wrong in principle.

Second, all this is just further proof that Roe is a bad decision, not just from a pro-life view, but because it has short-circuited and warped the debate for decades. As long as it makes things mostly or fully all-or-nothing, many Americans have tuned out of the debate, and self-identified absolutists on both sides have not faced the reality of what their positions would mean. A post-Roe world will be challenging, but it would be a monumental improvement over what we have now.

Posted by: Roe critic | Mar 31, 2011 4:48:38 PM