March for Life

Americans are a mixed bag in terms of their attitudes toward abortion and the humanity of unborn children. It is an interesting question whether or not the 1973 Supreme Court decision, Roe v. Wade, along with its companion case, Doe v. Bolton, actually kept these issues alive when they might have been consigned to ultimate invisibility by cultural regression and political inertia.

Some argue that the states were already moving to liberalize abortion law, thereby clothing the shift with political legitimacy resulting from democratic and legislative processes. This, in the long run, would have enshrined an unchallenged license to abort with barely a ripple, let alone public outcry. But, by clearing the board of all prohibitions on abortion in most of the 50 states, and establishing a new constitutional right for all nine months of pregnancy by judicial fiat, the high court energized an indigenous right-to-life movement without parallel in the world.

The United States still has a vibrant movement resisting the culture of death, a tenacious rear-guard action designed to impose restrictions on abortion providers comparable to those required for other medical providers. Truly, the witness to the sanctity of life is still strong in many parts of the country.

Over 1 million lives lost each year

Nevertheless, 1.2 million lives are lost to abortion every year, a number which has remained stable over the past decade after a slight decline from higher levels previously attained. In New York, Archbishop Timothy M. Dolan has decried the 90,000 abortions performed annually in the city, which is twice the national rate: “I’m frankly embarrassed to be a member of a community where 41 percent of pregnancies are terminated,” he said in late 2011. The rate is closer to 60 percent for black women in Gotham.

The Big Apple is an extreme case. Still, with almost 40 percent of American births out of wedlock, and even higher proportions of non-marital births for African-American and Hispanic women, it is no surprise that segments of the population are still availing themselves of abortion “services” provided with government support.

Yet, American attitudes on abortion remain conflicted. A recent poll by the Pew Research Center found 63 percent of Americans saying that Roe v. Wade should not be completely overturned, versus 29 percent who said it should. Such a binary choice presented to the poll’s respondents fails to provide for shades of opinion which might vary depending on the stage of pregnancy, the reason for the abortion, and who is paying for it.

This may explain why a May 2012 poll by Gallup revealed that 50 percent of Americans polled described themselves as “pro-life” — one point down from the record high in May 2009 — while 41 percent self-identified as “pro-choice”. These numbers have moved around a bit, but the data has trended toward the pro-life side for several cycles. Evidently, in the minds of many respondents, being pro-Roe is not inconsistent with being pro-life, if one is presented with an all or nothing choice between reversing the entire decision outright or letting it stand.

As a lawyer and one who has participated in these political debates over the years, I can testify that many citizens do not understand the very broad definition of the “health” exception for third-trimester abortions in the Doe case, Roe’s evil twin. In truth, American law countenances abortion for almost any reason up to the moment of birth. Indeed, the practice of “partial birth abortion”, which is really a species of infanticide committed at the moment of delivery, was banned only after the matter was taken all the way to the Supreme Court.

Besides a radical jurisprudence and government support, there is now “The Rise of the Do-It-Yourself Abortion”, as headlined in a cover story in The New Republic at the end of December. “But while obtaining an abortion at a clinic is becoming harder, home abortion has never been easier or safer,” writes Ada Calhoun. “In 2012, women have two resources that previous generations did not: abortion pills and the Internet.” From the perspective of the pro-choice lobby, this is very welcome and will allow women to avoid restrictions that many state legislatures are putting in place for abortion clinics.

Is the abortion side losing?

It is those restrictions that have the abortion party feeling very threatened these days, despite legal advantages and support for its cause from the commanding heights of the major media and intelligentsia. This is revealed in a rash of articles leading up to the 40th anniversary of Roe on January 22. Even a generally positive article in The New York Times on pregnancy centers which offer women an alternative to abortion hedges its bets with a quote from a politics professor who says that some of the “things pregnant women are told at many of these centers” are “really factually suspect”, although he does not cite any examples.

Time magazine’s January 14 issue offered readers a graphic cover story with the ominous title, “40 Years Ago, Abortion-Rights Activists Won An Epic Victory With Roe v.Wade. They’ve Been Losing Ever Since.” The dossier covers eight pages, with a detailed summary of state restrictions on abortion providers (“Invisible Barriers”) complete with maps of the states (color-coded), a matrix showing the number of providers per 100,000 women ages 15 to 44, and legal requirements imposed. The latter include parental notification or consent, a waiting period and a pre-abortion ultrasound scan.

This regulatory movement disturbs the author of Time’s lead article, Kate Pickert, very much. She links the regulations to a diminished availability of abortion providers. “The smaller number of doctors willing to perform abortions has likely contributed to a fairly steady drop in the overall abortion rate from about 30 per 1,000 women ages 15 to 44 in 1981 to about 20 per 1,000 in 2008, according to Guttmacher [Institute].” Of course, birth control and changing attitudes towards the family and “fetuses”, as well as state regulation, contribute to this diminishment. “Their [the pro-choice advocates] most pressing goal, 40 years after Roe, is to widen access to a procedure most Americans believe should be restricted-and no one wants to ever need,” says Pickert.

More angst was expressed in The Washington Post (“Roe at 40: ‘It’s never been this frightening before”) by Sarah Kliff in an article about the tension at a Pittsburgh clinic given protests and more regulations than ever before. “Last year, states passed 92 abortion restrictions, more than three times the number in any year since Guttmacher [Institute] started keeping count in 1985,” reports Kliff anxiously.­­­

Kliff writes that Claire Keys, director of the Allegheny Reproductive Center, “recalls thinking that the Supreme Court had settled the abortion argument, once and for all.” Now she is “fearful about the future of abortion rights-and the clinic. . . .It’s never been this frightening before,’ she said, ‘I don’t know if we’re going to make it.’”

No doubt, the abortion business is feeling pressure from state legislatures and many citizens who are deeply and understandably disturbed by the loss of 1.2 million unborn children every year.

The right-to-life movement must find it cold comfort, however, that success in protecting the unborn can only be measured by speculating on the number of abortions that have been prevented — an inherently uncertain thing. It is a resistance movement that must, for now at least, be satisfied that it has fought the abortion business to a deadly stalemate through tenacity, persuasion and a relentless effort at the margins of the law of abortion imposed upon the nation in a 7-2 decision four decades ago.

This year the annual March for Life in Washington will be held on January 25 to avoid the crowds attending the presidential inauguration earlier in the week. As the marchers offer witness to the humanity of the unborn and the tragedy of abortion, for the mothers as well as for their deceased children, they must take heart that the 1.2 million lives extinguished every year in the land of the free do not die unremembered.

G. Tracy Mehan, III, served at the U.S. E.P.A. in the administrations of both Presidents Bush. He is consultant in Arlington, Virginia, and an adjunct professor at George Mason University School of Law.

G. Tracy Mehan, III, was Assistant Administrator for Water at the U.S. Environmental Protection Agency in the Administration of President George W. Bush. He is an adjunct professor at Scalia Law School,...