The Sunday edition of the New York Times featured a shrill house editorial complaining about ongoing efforts to enact state level pro-life laws.  Pro-life proposals to regulate abortion clinics and protect unborn children were deemed “ominous”  “big brother measures” and “outrageous government intrusions.”  Both the timing and tone of this editorial are puzzling. Just last week Philadelphia abortionist Kermit Gosnell was charged with eight counts of murder for using scissors to kill babies delivered alive in his abortion mill. His clinic was described by regulators as a “filthy, foul smelling house of horrors.” In light of this, the New York Times must be the only newspaper in the country which believes that abortion clinics are somehow overunder-regulated.

More puzzling is the fact that the Times has a poor grasp of pro-life legislative strategies in the various states.  The editorial cites two areas where anti-abortion forces will be active in 2011.  The first area they mention is the fight over health insurance. This is odd because the key battles over abortion funding will likely take place, not in the states, but rather at the federal level. Two bills have already been introduced that will receive serious consideration. Congressman Chris Smith  has introduced  H.R. 3 “The No Taxpayer Funding for Abortion Act” which would create a permanent ban on federal taxpayer funding of abortion.  Additionally, Congressman Joe Pitts has introduced H.R. 358 “The Protect Life Act.” would rewrite multiple provisions of Obamacare in order to prohibit federal subsidies for abortion.

The second area mentioned by the Times are state-level efforts to ban late-term abortions. Here the Times fails to provide the whole story.  The editorial mentions a Nebraska law which went into effect in October which “bans abortions 20 weeks after conception” and “includes a very narrow exception for a woman’s life and physical health.”  However, what the Times fails to mention is that bill was called the “Pain Capable Unborn Child Protection Act.” This piece of legislation was introduced because there is a growing scientific consensus that the unborn can feel pain 20 weeks into gestation.  Pro-lifers hope the Supreme Court will take seriously Nebraska’s assertion that they have a compelling state interest in protecting the life of  those unborn children who, according to substantial medical evidence,  are able to feel pain.

Overall, state pro-life strategies will be far more varied than the Times realizes. In Alabama, Republicans won control of both chambers of the state legislature for the first time since 1874.  Even though the state legislature has often contained a pro-life majority in the past, hostile Democratic committee chairs have often succeeded in blocking pro-life bills. A Republican majority may give Alabama pro-lifers the opportunity to strengthen our parental-consent and informed consent bills. In Mississippi, pro-lifers have almost run out of legislation to pass and have succeeded in placing a personhood amendment on the ballot this November — a strategy that is controversial in pro-life circles.

The New York Times, however, is right about one thing. Most of the important gains made by the pro-life movement are taking place in the states.  This has been the case since the 1990s.  The pro-life movement was stalemated at the federal level by having Bill Clinton in the White House. However, the Supreme Court’s 1992 Planned Parenthood v. Casey decision gave pro-lifers some more legislative options at the state level.  Buoyed Republican gains in many state legislatures during the 1994 election, the number of states with parental involvement laws, informed consent laws, and waiting periods all increased dramatically during the 1990s.  These laws have helped reduce the number of abortions performed in the United States by over 20 percent since 1990. Furthermore, pro-lifers should hope that the gains made in the 2010 elections result in a similar surge in pro-life legislation across the 50 states.

 – Michael New is an assistant professor at the University of Alabama and a fellow at the Witherspoon Institute in Princeton, NJ.