From time to time, especially during election campaigns pitting pro-life against pro-abortion candidates, there are calls for pro-lifers to give up the political struggle and to focus on cultural change. For instance, Brian Fisher, of Online for Life, a group which uses the internet to reach out to people thinking of abortion, recently asserted in the Washington Post that “There are some who affirm life who believe that overturning Roe v. Wade is the only viable way to stop abortion.”
This is a straw man argument which fails to recognise the close link between law and culture. I have worked for many years in volunteer capacities from the lowest to highest levels in Missouri Right to Life and I don’t know any of my colleagues who believe that overturning Roe is “the only viable way to stop abortion.” Most of us understand our movement to be more complex, as are the concrete issues and social circumstances that we must address.
While overturning Roe v. Wade is an important legal goal, it is neither the ultimate legal goal (a Constitutional amendment to protect human lives would be the ultimate legal goal) nor a realistic short-term goal, given the current makeup of the US Supreme Court. In the mean time we must work to save as many lives as we can. We want these vulnerable human beings to have a chance to live a full and complete life, with all its joys and sorrows.
It would be gratifying to see Roe v. Wade reversed and American culture re-established on its foundational principles. But at the moment such aspirations must take second place to the primary aim of saving human lives. And in this, an essential weapon is political action and incremental legal change.
This requires effort in many fields, from the courts, the media, Hollywood and universities to welfare policies. Like a war, a great social movement requires many different types of service, with different organizations carrying out different roles. Participants will not take an active part in all of these, but changing the law on abortion is an important task that some must tackle and that all should support.
It is a profound error to adopt the view that we cannot change the law until we change the culture. Pro-abortionists did not wait until the culture was pro-abortion to change the law; from the 1960s they have worked tirelessly in the courts.
A short review of the history of abortion law is in order.
Most statutes prohibiting abortion were enacted in the mid-1800s, after scientific observations of fertilization occurred. It was obvious that a new human being, in biological terms, was created at fertilization, and thereafter there was only change by development, not change in kind, up to the time of birth. After this was understood, the American Medical Association led efforts to put criminal sanctions into statutes in order to protect nascent human life.
A century later, in 1967, Colorado became the first state to loosen abortion restrictions. It allowed them for limited reasons early in pregnancy. Over the next three years, 13 states followed Colorado’s lead. The last of these, New York, enacted a unique and hotly-contested statute that allowed abortions for any reason through the 24th week of the baby’s gestation. (Many 24-week preemies now survive.) The New York legislature actually passed a repeal of that law two years later, but it was vetoed by the then-Governor, Nelson Rockefeller.
After 1970, the movement toward pro-abortion legislation sputtered out. After New York, only one more state legislature adopted a more liberal abortion law until Roe v. Wade was decided, while 30 state legislatures rejected such laws during that time. The people of two more states, Michigan and North Dakota, rejected pro-abortion ballot measures late in 1972, just a few months before Roe v. Wade and Doe v. Bolton were decided.
So after 1970 the pro-life side was generally winning the legislative battle. But pro-abortionists did not care whether the culture favoured their cause. They pressed forward with lawsuits like Roe v. Wade and Doe v. Bolton. They knew that law directs and guides behavior.
In 1964 Martin Luther King was asked whether he would wait until the culture was ready for civil rights legislation. His response is instructive:
“Even though morality cannot be legislated, behavior can be regulated. While the law cannot change the heart, it can certainly restrain the heartless. It may be true that you can’t legislate integration, but you can certainly legislate desegregation. And I think that desegregation is a necessary first step to bring about an integrated society.”
A change in behaviour must be the first step. A change in attitudes will follow. In our society, we are so accustomed to the law bolstering what is right and moral that we assume that something is moral just because it is legal. While the rulings of federal courts on abortion and other family-related issues should have taught us that this is a huge mistake, it is still quite common. The law is a teacher that we cannot forget while we attempt to educate our fellow citizens about life.
Furthermore, the other side constantly presses to implicate all of us in paying for abortions, in giving recognition to the “right” to kill the unborn in order to solve personal and social problems, and in ridiculing the sanctity of human life. If we take a pass on political and legislative fights, we capitulate to the zealots of the culture of death.
In a free republic citizens change laws by electing representatives and executives who reflect their wishes. This inescapably requires participation in politics and in lobbying. In America, to shun these areas because of temporary setbacks or one’s personal distaste for politics and the legislative process is to shirk our responsibilities to defend life.
James S. Cole is a graduate of Harvard Law School who practices law in St. Louis, Missouri. His next article will rebut the argument that legislative and political struggle have failed to yield pro-life successes over the last 30 years.