“Our opponents have gotten very smart,” a leading pro-abortion activist told colleagues late last month in Washington DC at a conference organized by the American Constitution Society (ACS). This interesting event revealed that behind a self-confident façade, the best minds of the pro-abortion movement are deeply worried about the future. It took place only a week before a report from the Guttmacher Institute revealed that the US abortion has dropped to its lowest point since Roe v. Wade in 1973.
Under the guise of women’s health, ACS president Caroline Frederickson warned, new state and local laws are restricting American access to abortion. Elizabeth Nash, state issues manager at the Guttmacher Institute, added that the 2010 elections had “really shifted the composition” of American state legislatures and governorships. Subsequently, abortion restrictions “simply exploded” in a “tidal wave” of more than 200 local laws in the last three years in 30 states, more than in all of the previous decade. “Let me see what time it is” was the answer panel moderator Juliet Eilperin, Washington Post White House correspondent, jokingly attributed to Nash when asking her about the latest tally of abortion restrictions nationwide.
These laws were “really nearly everywhere” except for New England and the West Coast. Nash feels that progress will only be possible in California and Washington state. States and municipalities have become laboratories for new ideas on restricting abortion. In some states, abortion clinics have virtually disappeared, lamented Roger Evans, lead lawyer for America’s largest abortion provider, Planned Parenthood.
And existing restrictions are tightening up. Mandatory waiting periods before abortion, for example, have gone from 24 to 72 hours in many places, a period that does not count weekends and holidays in states like South Dakota. The “inventiveness and ingenuity” of opponents in inventing new abortion restrictions, marveled the keynote speaker, Senator Richard Blumenthal, of Connecticut.
Another initiative which worries abortion activists is laws requiring hospital admitting privileges for abortion doctors. Planned Parenthood’s Evens describes this as yet “another idea to screw” them. Such laws would be the “next big ticket item” approaching Supreme Court review, and Evans was not optimistic about the outcome given a “dramatic political change in the courts”.
The Supreme Court has “just eaten away” at the Roe v. Wade precedent following the 1992 Planned Parenthood of Southeastern Pa. v. Casey decision, Dawn Johnsen, a professor at Indiana University’s law school, complained. Casey had abandoned the “strict scrutiny” judicial standard under which a right restriction must serve a “compelling governmental interest” and be “narrowly tailored” to this interest. In place of this high threshold, Johnsen said, Casey substituted an “undue burden standard” that “radically changed the standard”.
The subjective Casey standard allows onerous abortion restrictions “entirely inconsistent” with “individual fundamental liberties” and with an “abortion-free” intent. Merely Roe’s “outer shell” remained, Johnsen complained, something that “has made our job so much harder”. Johnsen doubted that the Supreme Court would ever overturn with a single decision Roe — but it might be fated to fade away in successive steps.
Roger Evans agreed that a “dramatic erosion of [abortion] access across the country” had occurred since Casey. Abortion opponents are not stupid, he said, and it is “virtually impossible” to prove that a restriction has no rationale whatsoever other than to prevent abortions. As with past “back alley” abortions, “women are still going to get” abortions, so how is an “undue burden” provable? Casey itself already upheld obligatory waiting periods.
Americans are increasingly conservative in attitudes towards abortion, too. Millennials have abortion views “more reflective” of older standards, one speaker noted. Abortion support drops depending upon a woman’s motivation, such as advancing a career or furthering education. Single women often face hostility in their communities “just because they are being sexually active,” Williamson noted. New technologies such as sonograms of babies in the womb have also influenced public opinion.
Republican politicians were actually beginning to campaign on the issue of abortion. While Roe had been a “bipartisan opinion,” Republicans afterwards made “this stigmatized subject” of abortion a “wedge” and “partisan issue,” Johnsen observed. In her home state of Indiana even some Democrats opposed abortion.
Reflecting on “hard fought lessons” as an abortion rights lawyer in the American South, Heidi Williamson observed that prolife activists are “able to pivot and seize opportunities much more quickly.” Ineffective fire and brimstone tactics have given way to much more subtle weapons focused on women’s health. In the “contact sport” of guarding Southern abortion clinics, meanwhile, women seeking abortions had to pass “waves and waves of people.” They endured a “psychological impact” from abortion protesters (“You can see that a mile away,” Williamson said of an aborted fetus sign).
The panel members’ gloomy assessment of their long-term political prospects prompted consideration of how to reverse the trend. “How are we going to teach the public that having an abortion is not a bad thing?” asked a woman in the audience. Johnsen called for people to “be more open about the issue,” citing the Guttmacher Institute estimate that one in three American women have had an abortion.
None of the panel’s arguments were convincing. After 40 years and 56 million abortions, are Americans really better off than before Roe v. Wade? Precisely these realities have turned younger people against widespread legal abortion. When women share their experience of abortion, it is often with a sense of regret. The Roe opinion remains anything but settled law.
Defending life requires grit and persistence. The discouragement of the panelists at the American Constitution Society’s panel, though, indicates that skilled and unrelenting advocacy for incremental successes can achieve victory. Was Senator Blumenthal correct to claim during the event that abortion advocates are on the right side of history? No way. Not at all.
Andrew E. Harrod is a freelance researcher and writer who holds a PhD from the Fletcher School of Law and Diplomacy and a JD from George Washington University Law School. He is admitted to the Virginia State Bar.