Roe V. Wade's 40th Anniversary: A Moment of Truth for the Antiabortion-Rights Movement?

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TABLE OF CONTENTS  INTRODUCTION  I.   PRE-ROE ANTI-ABORTION-RIGHTS ACTIVISM II.  THE BIRTH OF THE |NCREMENTALIST STRATEGY III. CASEY AND THE ENTRENCHMENT OF THE INCREMENTALIST STRATEGY IV. THE LIMITS OF THE INCREMENTALIST APPROACH CONCLUSION: THE FUTURE OF THE ANTI-ABORTION-RIGHTS MOVEMENT 

INTRODUCTION

In the forty years since the Supreme Court decided Roe v. Wade, (1) the antiabortion-rights movement has pursued a strategy of incrementally whittling away at the right to abortion. Until the Court's 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, which reaffirmed the right to abortion, (2) the movement still harbored hopes of overturning Roe and passing a federal "Human Life Amendment" that would treat embryos and fetuses as constitutional persons. But alongside these efforts, and single-mindedly once Casey was decided, the mainstream anti-abortion-rights movement has sought to change "hearts and minds" about abortion by giving it disfavored treatment in the law through as many channels as possible, without actually banning the procedure. Advocates have pushed a steady stream of abortion restrictions short of outright bans through state legislatures, and sometimes Congress. They have also pursued measures that aim to enhance the legal status of embryos and fetuses in areas outside of abortion, in the hopes that abortion will come to be seen as an unacceptable legal anomaly. These measures include fetal homicide laws and bans on human cloning and embryonic stem cell research. (3) Leaders of the mainstream movement believe that this incrementalist strategy has served to keep the issue alive in the public consciousness and will gradually turn the tide of public opinion against the procedure. (4)

The incrementalist strategy has been successful in some respects. The approach scored a major victory when, in Casey, the Supreme Court upheld Roe but weakened the constitutional test for abortion restrictions by supplanting the former strict scrutiny test with the more lenient "undue burden" standard. The Court applied this test to uphold several provisions of Pennsylvania's omnibus abortion law. In Casey's wake, advocates have successfully lobbied for copycat versions of these Casey-approved measures, including state-scripted counseling mandates, waiting periods, and parental involvement requirements for minors. A large majority of states now enforce at least one of these restrictions. At the same time, Casey opened the door to experimentation in restrictions that might fall short of an impermissible "undue burden" on abortion rights. Restrictions beyond the Casey template, including ultrasound requirements and onerous abortion facility regulations, have been enacted in a smaller number of states.

The mainstream anti-abortion-rights movement, encouraged by Casey, has pursued legislation calculated to appeal to a public that generally favors abortion rights, albeit with some restrictions. In advocating for these incremental measures, the anti-abortion-rights movement has not always been forthright about its ultimate goal to ban all abortions. (5) Thus, laws mandating counseling designed to dissuade women from having abortions are presented as fostering "informed consent." Waiting period laws appear to give women the opportunity to reflect on an important decision. Requirements that teens involve their parents or a court before opting for abortion purportedly promote family communication and protect young people from rash decision-making. Anti-abortion-rights leaders in a 2007 strategy memo described these types of laws as "helpful legal changes" that serve to "keep the abortion issue alive" and to "change hearts and minds" about abortion, paving the way for a future ban. (6) When speaking to the public, however, the mainstream movement makes broad and vague appeals to protecting "life," keeping its more radical agenda under wraps.

The familiar refrain that "life begins at conception" is a politically favorable way for the anti-abortion movement to frame its mission. …