First Steps : A new strategy for pro-lifers - federalism amendment would return abortion issue to states and end legalization

National Review, Dec 20, 1999 by Clarke D. Forsythe

WHEN Bill Clinton was elected president, columnist Charles Krauthammer wrote that the national argument about abortion was over. Seven years into the Clinton era, it is timely to ask: What is the objective of the pro- life movement? And what strategy should we pursue?

One formulation of the objective comes from Richard John Neuhaus: We seek "a society in which every child is protected in law and welcomed in life." This statement captures the important truth that a real solution to abortion must take account of both law and culture.

Because the 1973 Roe v. Wade decision created a national right to abortion, and declared that unborn children are not "persons" entitled to the same constitutional protection as born children, the political goal most frequently mentioned by pro-lifers has been a Human Life Amendment (HLA) to reverse Roe. An HLA would declare unborn children to be "persons" deserving equal protection under the Constitution.

Unfortunately, no one has devised a realistic plan to enact an HLA. Early efforts to pass such an amendment in Congress, in the 1970s, were based on the assumption that the public would reject the Roe decision. That didn't happen, and the HLA was pushed off the table as a result.

But there is a more realistic strategy we can pursue. If pro-lifers pare down their medium-term goals, they might be able to change the political dynamics of abortion-and, in the longer term, even make abolition possible. What I propose, specifically, is a strategy based on eliminating the national right to abortion, through a federalism amendment. The first step in achieving meaningful social and legal constraints on abortion is returning the issue to the states.

IS THE ARGUMENT OVER?

In Supreme Court deliberations, the pro-life cause is back where it was before Ronald Reagan was elected-with neither a majority inclined to overturn Roe, nor a president willing to appoint anti-Roe justices. The pro-abortion majority has only gained on the Supreme Court since Clinton took office in 1993, with the addition of Justices Ginsburg and Breyer. Every indication is that this Court will invalidate any abortion legislation, state or federal, that flies in the face of pro-abortion precedents. And a personhood ruling by the Supreme Court (an HLA by judicial decision) has been rejected by virtually every justice.

But the fact remains that, 26 years after Roe, Americans see abortion as a "necessary evil." Both words here are important. That Americans see abortion as an evil, there is no doubt. A poll released last January reported that 50 percent of Americans see abortion as "murder." That reinforces a 1991 Gallup survey, which put that figure at 49 percent, and showed that an additional 28 percent saw abortion as at least "the taking of human life." So, a total of 77 percent view abortion as at least the taking of human life, if not murder itself. That argument is over-and our side won.

But many Americans also believe abortion is necessary, to avert the back alley. The public has bought some historical myths created by abortion advocates, chief among them that abortion law did not prevent abortions; that, before Roe, hundreds of thousands of illegal abortions were performed every year; and that hundreds, or even thousands, of women died every year from illegal abortions.

In other words, the public believes that prohibiting abortion would not only fail to reduce the number of abortions, it would have other bad consequences as well.

These rhetorical tactics have convinced Americans that the only realistic option is to persuade women to choose something other than abortion; legal prohibitions are not a reasonable or effective solution. The most enduring and effective argument that abortion proponents have used over the last 30 years can be summed up in the coat hanger. It is a practical argument, not a philosophical one. It is the reason polls show that a majority of Americans think abortion is murder, and that it should nonetheless remain legal: alternatives, prevention, adoption-yes. Criminalizing-no. (This also explains why most Americans support practically any regulations short of criminalization.)

There will be no dramatic change in public opinion until the pro-life cause does the heavy lifting that is required to overcome the myth of abortion as a necessary evil.

STATES WILL PROVE ABORTION ISN'T NECESSARY

This is where a federalism amendment could make a huge difference. To see how, it is important to understand the specific practical impact of Roe v. Wade.

Roe did two things. First, it created a national right to abortion, empowering the federal courts to block state enforcement of abortion laws. As a practical matter, that prevented the states from prohibiting the abortion trade. (At least one state, Rhode Island, tried to enact comprehensive anti-abortion legislation in the face of the Supreme Court decision; that legislation was blocked by injunction. After the Webster case in 1989, Louisiana and Guam also tried strong legislative approaches, but these too were invalidated by the courts.)