A Grassroots Legislative Boom E-mail
Summer 2012
Written by William Murchison   

A well-known line from Butch Cassidy and the Sundance Kid comes to mind. The amiable outlaws, hard as they try, can’t shake a pursuing posse. “Who are these guys?,” they keep asking. All that Butch and Sundance can be sure of is some uncomfortable destiny associated with learning the answer to their urgent question.

In like manner, who are the “guys”—and, I might add, the “girls”—on the right-to-life front who just keep acomin’ when you’d think they’d have given up by now, all lost and tuckered-out?

Instead they seem to be throwing the seemingly triumphant “reproductive freedom” lobby into fits of anxiety. Who are they, anyway? Just a few dogged outriders, or an agency capable of restoring in large measure the constitutional rights of the unborn?

I believe the indicated answer is, we’ll see. However, what right-to-life folk see, and with some delight, is the burgeoning of grassroots resistance to the doctrine that should you occupy room in the womb, your mom enjoys the right to evict you without notice.

A little distinction-making activity is in order at this point. Never, since Roe v. Wade first came down, in 1973, have the so-called grassroots been somnolent concerning the aforesaid right, rightly identified by them as no right at all, rather a violation of a sacred command to save, when possible, that which the Maker has made. There have been since the ’70s, protests in front of abortion clinics; there have been vigils, rallies in Washington, face-to-face reasonings with political leaders. There have been lawsuits and sermons and phone banks and polls and magazines (e.g., this one) and everything else you can think of connected to the elusive, as it happens, goal of reclaiming official respect for unborn life.

Is it all, at last, starting to pay off? I want to note evidence that this might just be the case—evidence of something large enough to annoy the New York Times’ editorial writers, who warned, in July, of a “state-by-state assault on women’s rights and the Constitution by Republicans . . .”

The Times undertook to instruct a federal judge in Arizona, the Hon. James A. Teilborg, concerning his constitutional duty to swat down a state law imposing “new restrictions on legal abortions, based on medically dubious ideas about when a fetus can begin to feel pain.” The law, signed last April by Republican Gov. Jan Brewer, was “a product of right-wing politics.” Its constitutional deficiencies should have been “clear to the judge,” who, the Times dared to hope, might block “this harmful law from taking effect.”

Which—can you imagine it?—he didn’t. Instead he upheld a statute that the American Civil Liberties Union had called “the most extreme abortion law in the country.” The plaintiffs quickly recovered, obtaining an emergency order from the Ninth Circuit Court of Appeals that blocks enforcement. A reasonable guess is that the Ninth Circuit, the country’s most liberal, won’t like the law any better than the Times does. After that, of course, there’s the Supreme Court, at whose majestic door lies proximate responsibility for the aforesaid contentions and anxieties.

Let something else be noted: Arizona’s law isn’t the only law of this character to be enacted at the state level just since 2011. State lawmakers across the country—save, naturally, on the Northeastern and far Western fringes—are bucking orthodox pro-choice opinion in order to ban abortion at about 20 weeks. A federal judge, meanwhile, has squared their intentions with those intuited from study of the medical circumstances that obtain at 20 weeks of pregnancy.

The present point for discussion isn’t prospects, bright or dim, for judicial affirmation of the Arizona law. The point is the law’s existence—years and years and years past the point at which the proponents of “choice” must surely have expected the cause they overwhelmed judicially, in 1973, to have melted like an ice cube in the sun. Instead the cause intensifies. Lawmakers grind out more and more, as opposed to fewer and fewer, laws aimed at limiting the number of abortions. New strategies pour forth from nimble minds. Says Planned Parenthood’s president, Cecile Richards, a hint of desperation in her tone: “We’re in court and in legislatures in almost every state of the country. It has just gotten crazy.”

Who are these guys? What’s the matter that nothing seems to knock the legislative opponents of abortion off balance or quench their hope of reducing Roe not exactly to a nullity but to something far less grand—and deadly—than envisioned originally? Could it be said with any accuracy that the scaffolding on which the legal right to abortion rests is starting to sway in the wind and might not be counted on to last forever? Informed speculation has it that the Supreme Court itself might be ready to revisit its 1973 doctrine, laid down in Roe v. Wade and Doe v. Bolton. Hmmmm.

Time, certainly, to inspect what goes on.

A lot, in fact, goes on: an intensification, you might call it, of the wide and deep resistance born of the judicial presumption represented by the Roe and Doe decisions. For testimony regarding present trends, I call on the Guttmacher Institute—which, for all its outspokenness concerning “sexual and reproductive health rights,” catalogs with thoroughness and sobriety.

“Over the last decade,” says a Guttmacher report from the start of 2012, “the abortion policy landscape at the state level has shifted dramatically.” It appears that “55 percent of U.S. women of reproductive age now live in one of the 26 states considered hostile to abortion rights.” This compares with a mere third in 2000.

In 2011, says Guttmacher, states adopted 135 new provisions bearing on “reproductive health.” The year before it had been 89, the year before that 77. “A striking 68 percent of the reproductive health provisions from 2011,” according to Guttmacher, “are about restriction, compared with only 26 percent the year before.”

States, in other words, have toughened their approach to the protection of unborn life. They have not all danced to the same tune. States whose leaders share the worldview of the New York Times (New England, New York, the Left Coast) have not let up on their commitment to the Roe doctrine. Yet the glorious thing about the federal system—one of the many glorious things—is the latitude it provides individual actors to determine, within certain prescribed limits, the policy direction in which they want to go. The federal system is the enemy of uniformity and the straitjacket. Even in the 21st century there remains considerable room for experimentation and the testing of limits.

It seems a fair guess that the sheer tenacity of the right-to-life movement—coupled with wide disgust at the cultural and political climate of Barack Obama’s Washington, D.C.—explains the willingness of state lawmakers to take chances with creative expansions of the claim to immunity from assault-by-abortionist. Elections that have installed conservative and pro-life champions in state legislative chambers are also crucial to understanding the abundance of new laws narrowing the grounds on which a woman may claim the right to an abortion.

Arizona’s law, though stigmatized as extreme by the ACLU and the Times, is congruent with laws passed by nine other states—North Carolina, Nebraska, Alabama, Idaho, Indiana, Kansas, Oklahoma, Georgia, and Louisiana over the last couple of years. The idea is to claim, in behalf of unborn life, every ounce of protection available. Arizona’s count of gestational age, starting from the last day of the mother’s menstrual cycle, fills that bill even more strictly than the gestational-age-counts of the other states. The count, Arizona-style, climaxes at about the normal time for an ultrasound procedure, just before viability commences.

Concerning the opportunities for life-protection that arise at this point, a Guttmacher estimate is worth noting—to wit, only 1.5 percent of U.S. abortions in 2006 took place after 20 weeks. Is it not worth noting at the same time that 1.5 percent is still 1.5 percent? The authors of Arizona’s HB 2036 believed so.

Judge Teilborg—a Bill Clinton appointee, by the way—backed them up. He found the bill’s escape clauses constitutionally adequate. The ban was no flat prohibition of abortion between 20 weeks and the onset of viability. Arizona had left open the door for 20-week abortions to save the mother’s life, or to counter the possibility of “substantial and irreversible impairment of a major bodily function.” Yes, the law, as Teilborg acknowledged, could “prompt a few women who are considering abortion as an option to make the ultimate decision earlier than they might otherwise have made it.” Still, it prohibited no woman from deciding ultimately to abort.

Why such a law, then? For compassion’s sake. Teilborg noted that the legislature had “cited the substantial and well-documented evidence that an unborn child”—I pause to note the judge’s word choice: child, not fetus—“has the capacity to feel pain during an abortion by at least 20 weeks gestational age.” Teilborg said the state “presented uncontested and credible evidence to the court that supports this determination.” Thus “the court finds that, by seven weeks gestational age, pain sensors develop in the face of the unborn child”—child, once more!—“and, by 20 weeks, sensory receptors develop all over the child’s body and the children have a full complement of pain receptors.” The child reacts, said Teilborg, “to painful stimuli as measured by increases in the child’s stress hormones, heart rate, and blood pressure.” The state’s interest in “limiting abortions past 20 weeks gestational age” was perforce “legitimate.”

In Teilborg’s deliberations on pain might be heard powerful echoes of contentions during the partial-birth controversies of recent years: the sufferings of the unborn, unrebuked aggression against defenseless life. Not the lightest effect of Arizona’s law, and kindred statutes passed elsewhere, is the reconnection they can achieve between now-scattered memories of the things that humans, at their best, owe one another—kindness, for example; generosity; protection. The Arizona statute could be called a classroom for revival of impulses not easy to replicate in the “me” era. Small wonder Planned Parenthood likes it not at all. Too much dwelling on the psychic and moral cost of abortion could shoot down the whole project of rendering the procedure no more notable or significant than a wisdom tooth extraction.

In 2012, thanks to HB 2036 and several other legislative pro-life initiatives, Arizona became, by the Guttmacher Institute’s reckoning, a state “hostile” to abortion. No doubt such an assessment suits Gov. Jan Brewer right down to the ground. “Arizona,” Guttmacher explains, “moved from supportive to hostile almost entirely because of the departure of Gov. Janet Napolitano (D), who repeatedly vetoed provisions to limit abortion access . . .” (and subsequently became President Obama’s secretary of Homeland Security). Brewer was eager to proceed in precisely the opposite direction.

And so the great “middle” ground, as the Guttmacher Institute defines it, eroded further—the ground occupied by states with no more than two or three statutory provisions that restrict abortion. “In 2000, 19 states were middle-ground and only 13 states were hostile. By 2011 . . . 26 states were hostile to abortion rights, and the number of middle-ground states had [been] cut in half, to nine.” A statistic that Guttmacher finds discouraging gives heart, by contrast, to the pro-life folk who just keep acomin’, never mind the setbacks they encounter in states where disdain for unborn life is high, not to mention fashionable.

Around the country an intellectual battle goes forward—by political and judicial means, the means modern Americans seem to like best for effecting change of any kind. The 20-week Teilborg opinion is part of the picture, with its affirmation of a right, if not a positive duty, to take into account the pain that abortion inflicts on the life chosen for extinction. There is no mention of such, um, complications in Roe v. Wade, whose jurisprudential thrust is all about rights and privileges and personal satisfactions.
On other parts of the battlefield, legislatures “hostile” (in Guttmacher terminology) to abortion enact laws of congruent purpose, meant to carve out, in one way or another, space for the preservation of unborn life. Guttmacher reports, for instance, the passage in nine states of laws requiring counseling on abortion’s mental downsides, including the risk to the mother of suicide or suicidal thoughts.

The day after Teilborg’s Arizona decision, by happy coincidence, the U.S. Court of Appeals for the Eighth Circuit gave a thumbs-up to South Dakota’s counseling law. A three-judge panel had invalidated the law. A subsequent hearing before the full court resulted in a 7-4 decision calling the law “neither an undue burden on abortion rights nor a violation of physicians’ free speech right”—duly horrifying the New York Times. Meanwhile eight states restrict abortion by medication (mifepristone). Twenty-one require that ultrasound images of the womb either be shown to a woman seeking abortion or else made available to her. Already 20 states have limited abortion coverage in the health exchanges mandated under ObamaCare.

Then there’s the donnybrook over Planned Parenthood, the celebrated provider of birth control, gynecological exams, and abortions: latterly an adjunct of the Democratic Party by virtue of its one-sided political contributions and May 30 endorsement of President Obama for reelection. Cecile Richards, 55-year-old daughter of all-purpose feminist and Democratic Texas governor, the late Ann Richards, puts the word out that “the Republican Party leadership is on a crusade to end birth-control access in America.” If Indiana Congressman Mike Pence—a Republican, of course—failed last year to cut off Planned Parenthood’s federal money, various states are happy to essay the defunding job from their own end. Indiana, North Carolina, Kansas, Tennessee, and Texas—not to mention Arizona—are all targets of Planned Parenthood suits claiming state-funding cutoffs punish the organization for providing constitutionally protected services. The claim would seem a slim one. A group providing constitutionally protected services enjoys entitlement to taxpayer funding? Mitt Romney meanwhile promises if elected to do his own bit to push Planned Parenthood off the federal payroll.

Yeah, who are these guys—the ones causing the likes of Cecile Richards, it could be supposed, to awaken in a cold sweat, nerves taut and eyes darting into dark corners for signs of the lurking foe? Is opposition to abortion just another Republican dirty trick, as Democratic operatives are prone to suggest? Or is it evidence—whether marshaled by a political party or not—of a new awakening to the truly grave character of that which the Supreme Court, in January, 1973, imposed on the states with barely a nod to competing viewpoints?

That dislike for the Roe regime, far from collapsing, should be intensifying after four decades, is the salient feature of the new circumstances at the political and legislative level. Think: What other phenomenon from the early ’70s do we remain angry, agitated, vexed, defensive, aggressive about? The war in Vietnam no longer excites interest or discussion. Lyndon Johnson, who died the same day the Supreme Court handed down Roe and Doe, is a name without special resonance, an echo of battles past. No one speaks much of Richard Nixon or, for that matter, of Bernstein and Woodward, save when one of them has a new, definitely non-Watergate, book out. The “energy crisis” persists only in diminished form: background noise more than anything else.

The memory of Justice Harry Blackmun’s craft, or lack of it, in Roe v. Wade—that is what persists. Why should it not? It changed America, as indeed it was meant to. The biblically based presumption in favor of unborn life had informed thinking and practice in the West for as long as there had been Christianity. It was plain to the fathers of the church, as it had been to the compilers of God’s word in the scriptures, that life was the gift of God. The gift of God was to be handled with care, not to mention reverence and, generally, excitement at the extension of His handiwork in the world. The gift of God was not to be slapped away for any old reason. The 19th century English historian W. E. H. Lecky noted that no law in the pagan societies of Greece and Rome had ever condemned abortion. The discarding of life was a matter of no great moment to societies with a tenuous grasp, if any at all, of life’s origins. Enter at that point the church, which, in Lecky’s words, denounced abortion “not simply as inhuman, but as definitely murder. In the penitential discipline of the church, abortion was placed in the same category as infanticide.”

To the utilitarian conception of the Greeks and the Romans—life useful if you thought it so, otherwise if you thought it otherwise—the Roe and Doe decisions returned the United States of America. “It is, in some sense, as though two thousand years had rolled away and the streets again were full of worshipers hastening up the hill to the columned temple of the gods.”

I am quoting myself. I wrote those words in the early ’90s. Would I—could I—write them today with similar conviction? I can’t say. Certainty as to the movements of opinion and circumstance in human societies is not a thing to recommend highly.

The current pushback against the abortion regime of “me first” has likely its political elements: the element of let’s get Obama, let’s stick it to the Democrats. The necessity of someone’s governing always suggests to many the necessity of their being chosen as the “someones.” There is surely some of that in present pushback movement. I make bold to suggest at the same time that the moral vacuity of the abortion regime has begun to tell on minds and consciences. The seven justices—very learned men, yes, of course—who hung Roe around their countrymen’s necks in 1973 did so with only the most superficial doubts as to the rectitude of their case. It would all work out, they reasoned. We would get used to a regime of Choice: everybody pleasing himself; by which I mean, of course, “herself.” It has not worked at all. That is a lot of what goes on here, I think. The abortion regime is a practical as well as a moral flop. Most of us now know it, whether admitting to that knowledge or not.

Any guesses, therefore, as to how long it will take the posse to catch the outlaws? My own guess: The abortion regime’s disappearance will coincide with modern culture’s re-appropriation of its lost spiritual-ethical norms. That could take a while, to put it mildly. While we wait, nonetheless, another pop culture line brings cheer. Credit Wesley Smith with appropriating the line in a blog post commenting on the Arizona decision. What the decision shows, Smith observed with no small show of satisfaction, is “how the times, they are a changin’.”

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William Murchison writes from Dallas for Creators Syndicate and is a senior editor of the Human Life Review. The author of Mortal Follies: Episcopalians and the Crisis of Mainline Christianity (Encounter Books), he is working on a book about the moral collapse of secularism.