Wednesday’s Gonzales v. Carhart decision upholding the federal partial-birth-abortion ban has been well received by pro-lifers. Indeed, the Judiciary has been a consistent thorn in the side of the pro-life movement and Supreme Court decisions that uphold pro-life laws should rightfully be applauded. More importantly, this decision demonstrates that the incremental strategy pursued by the pro-life movement continues to pay some real dividends. The ruling is a good indication pro-lifers would do well to continue this strategy of incrementalism in the future.
Indeed Wednesday’s decision was made possible by pro-lifers whose hard work resulted in a Congress, a president, and a Judiciary who were all supportive of the partial-birth-abortion ban. This decision builds on the Casey v. Planned Parenthood
decision, argued almost exactly 15 years ago. Casey
strengthened constitutional protection for public-funding bans, parental-involvement laws, waiting periods, and informed-consent laws. The Supreme Court’s decision on Wednesday extends constitutional protection to yet another piece of pro-life legislation.
Now some critics may correctly point out that this decision by itself may not have a large impact on national abortion trends. About 12 states had enacted partial-birth-abortion bans prior to the Stenberg v. Carhart decision in 2000. Since most of these laws were enacted during the late 1990s, there is relatively little data with which to evaluate their effectiveness. However, my research indicates that there are better legislative strategies to protect the unborn than banning partial-birth abortion.
Regardless, incremental legislation often serves an important informational purpose. Many people pay little attention to politics and are unaware of the permissive polices the United States has regarding abortion. Many do not know that in many states a minor can obtain an abortion with out her parents’ knowledge. Furthermore, many do not know that a woman can obtain a legal abortion during her ninth month of pregnancy. As such, it is undeniable that the national campaign to end partial-birth abortion gained a considerable amount of publicity and was effective in moving the general public toward a more pro-life direction.
Indeed, during the 1990s the abortion rates fall the fastest in states that were passing lots of pro-life legislation. However, abortion numbers fell in almost every state — even states that did not pass any pro-life laws. There is a good chance that the national campaign to end partial-birth abortion played a large role in this nationwide decline.
As such, the pro-life movement would do well to continue this strategy of incrementalism. While this may seem relatively uncontroversial in pro-life circles today, the battle between incrementalists and purists at one point was extremely divisive. Many pro-lifers are too young to remember the bitter battles within the pro-life movement during the late 1970s and the early 1980s about the best way to design a human-life amendment.
Now by the mid 1980s most pro-lifers realized that a constitutional amendment was not a realistic short term political goal. As such, the strategy of most pro-life groups shifted toward changing the Supreme Court. This enjoyed somewhat broader support and tensions cooled somewhat. However, it is possible that a reversal of Roe v. Wade could reignite these tensions. Legislators may be called to dismiss incremental legislation in favor of politically infeasible laws that would eliminate abortion entirely.
However, the pro-life movement would do well to remain united. Many do not realize the political difficulties that Roe v. Wade has imposed on the pro-life movement. Roe not only legalized abortion on demand and make abortion policy resistant to change. It also changed societal sexual and cultural mores in such a way as to make subsequent restrictions on abortion more difficult to enact. It gave abortion rights mainstream political legitimacy. It also created a national network of abortion providers with a financial interest in easy access to abortion. These have been difficult hurdles for the pro-life movement to overcome.
Regardless, the pro-life movement has made some real progress — progress that pro-lifers could at times do a better job of advertising. During the 1990s more states enacted parental-involvement laws, waiting periods, and informed-consent laws. More importantly, abortions have fallen by 20 percent since 1990 and the number of abortions has fallen 13 out of the past 14 years. These gains were due to both political victories in the states and court decisions that gave these laws constitutional protection. Wednesday’s Supreme Court decision provides evidence that gains like this can continue — if pro-lifers stay the course.
– Michael J. New is an assistant professor at the University of Alabama.