A Warning to the Pro-Life Movement

By Williams, Daniel K. | First Things; A Monthly Journal of Religion and Public Life, October 2020 | Go to article overview

A Warning to the Pro-Life Movement


Williams, Daniel K., First Things; A Monthly Journal of Religion and Public Life


Abortion and the Law in America: Roe v. Wade to the Present

BY MARY ZIEGLER CAMBRIDGE, 326 PAGES, $29.99

Ask a pro-life activist what he or she hopes to accomplish, and you're likely to hear that the law should protect unborn human life in accordance with the principles of the Declaration of Independence and the Constitution. Ask a pro-choice activist the same question, and you're likely to hear about the need to defend Roe v. Wade and the interpretation of constitutional rights it represents. But the shaping of abortion law in the United States during the last forty-five years has rarely involved conflicting rights claims or competing interpretations of the Constitution, nor even the question of whether to ban abortion. Instead, most Supreme Court cases on abortion have focused on abortion access and whether a particular restriction on abortion constitutes an "undue burden" on women who want one.

Likewise, Mary Ziegler's Abortion and the Law. Whereas previous studies of abortion law have generally focused on high-profile abortion cases that involved competing rights claims-as was especially evident in Roe v. Wade (1973)-Ziegler's account begins after Roe and concerns itself almost entirely with the hairsplitting minutiae of abortion laws that have been debated before the high court and hammered out in numerous cases over the course of decades. The Court decided, for instance, that requiring a minor to obtain parental consent for an abortion violated the Constitution-but requiring her merely to inform a parent or guardian did not. The Court decided that a state prohibition on partial-birth abortion was unconstitutional because its broad wording might affect other second-trimester abortion techniques, but a more precisely worded federal ban on partial-birth abortion passed constitutional muster. The Court ruled that a Colorado law prohibiting pro-life sidewalk demonstrators from approaching within eight feet of anyone entering or exiting an abortion clinic was constitutional, but a Massachusetts law creating a thirty-five-foot buffer zone around clinic entrances was not. To an outsider, these fine distinctions may have seemed arbitrary, and to a large extent they were, since they depended on split decisions that rarely could be predicted in advance and sometimes were decided by the slimmest of majorities.

Few activists on either side of the abortion debate wanted to prioritize these issues, but the lawyers recognized that if any change in abortion policy were to occur, it would be in the area of abortion access, not abortion rights. The first policy to reduce significantly the number of abortions in the United States- the Hyde Amendment-was passed without much notice from either pro-life or pro-choice activists. Before it was adopted in 1976, one-third of all abortions were funded through Medicaid. Although the two states with the highest number of abortions-California and New York-continued to pay for abortions through state Medicaid programs, the Hyde Amendment played a major role in reducing access to abortion for low-income women in much of the South, Great Plains, and parts of the Midwest, all of which regions have lower abortion rates to this day. But at the time, neither the pro-life nor the pro-choice movement was particularly interested in the debate over Medicaid funding for abortion-one reason the amendment was passed without much controversy in a largely pro-choice, majority Democratic Congress. Pro-life organizations in the mid-1970s were more invested in the campaign for an anti-abortion constitutional amendment, and pro-choice organizations found that warnings about poor women losing access to abortion had far less fundraising potential among their upper-middle-class constituency than did warnings that abortion rights would be taken away for all women. Both sides wanted to talk about rights rather than access. As a result, the lawyers-Americans United for Life on the pro-life side, NARAL on the other- debated the finer points of abortion access legislation, largely in isolation from their movements' donors and activists. …

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