Law & the Courts

Abortion-Rights Activists Overplayed Their Hand

Pro-choice protesters in front of the Alabama State House in Montgomery, Ala., May 14, 2019. (Chris Aluka Berry/Reuters)
It should come as no surprise that pro-life legislators are now standing behind an unlimited right to life.

Advocates of laws permitting late-term abortion have pushed the boundaries too far by advocating for late-term abortion — essentially, infanticide. They have no one but themselves to blame for the recent passage of conservative pro-life legislation that aims for protection of life at all stages.

They have publicized truly tragic cases to justify third-trimester abortion. The New York Times, for example, leading the call for New York’s liberalization of its 1970 abortion law, ran the story of Erika Christensen. She discovered in her 30th week of pregnancy that her child suffered from a birth defect that would cause him “to choke to death minutes after birth.” New York’s law was already the most permissive in the country. It allowed abortion “on demand” up to 24 weeks’ gestation and prohibited it after that except to preserve the mother’s life. Christensen had to travel to Colorado for the abortion. Similarly, Christian Cauterucci, in “The Case for Third-Trimester Abortions,” in Slate, described similar cases of children who would be unable to survive long after birth.

In reality, hard cases like Christiansen’s are exceedingly rare. Most late-term abortions are performed for no real reason.  None need be given, except a physician’s belief that a continuation of pregnancy would cause psychological stress. This was part of the fraud of the New York Times presentation. No change in the New York State law was necessary to accommodate Christiansen’s case. If her physician had performed the abortion because he deemed the pregnancy dangerous to her psychological health, he would have been perfectly safe under repeated Supreme Court rulings. It was not the law that compelled her to travel to Colorado to find a physician who would perform a late-term abortion. It was rather the unwillingness of more than a handful (four who admit it) of physicians to do so.

Moreover, such cases are really cases of euthanasia; the same reasons that might justify killing before birth could be given for killing after birth. This is what Virginia governor Ralph Northam meant when he said infamously that the fate of children who survived abortions would be decided by a “discussion” between mother and physician.

The presentation of these cases raises the question: If late-term abortions need to be justified, why don’t all abortions? Advocates for unlimited abortion rights have undermined the argument for abortion rights generally.

Before Roe v. Wade imposed a national abortion code, every state permitted abortions for “therapeutic” reasons, maternal life (as in the 1970 New York law) being the most common. The American Law Institute drafted a model law that about a dozen states adopted in the late 1960s. It added cases of rape, incest, fetal deformity, and — the kicker would become the basis of “abortion on demand” — maternal health, including psychological health. But these laws required that more than one physician, or that a hospital committee, review the reasons and approve the abortion. This policy reflected the commonsense understanding that the taking of a human life required justification.

These authorities authorized very few abortions and left abortion advocates disappointed with the new laws. That led them to call for the repeal of all abortion laws (today’s NARAL was then the National Association for the Repeal of Abortion Laws — same acronym), which the Supreme Court effectively gave them in Roe. The truth was that by the middle of the 20th century there were seldom any physical reasons for therapeutic abortions. Alan Guttmacher, one of the founding fathers of the abortion-rights movement, admitted as much in the 1950s.

Americans did not understand how extensive Roe was, and they still do not. Justice Harry Blackmun, the author, allowed that states could permit only licensed physicians to perform abortions. Chief Justice Warren Burger insisted that the case did not amount to “abortion on demand.” Commentators at the time and since then have inaccurately claimed that the case permitted only “early abortions.”

We’ve been through this fog of deception many times before. The New York Times and other media outlets routinely exaggerated by an order of magnitude the number of women who died from illegal abortions before Roe. Pro-abortion-rights historians have repeated these claims. (The number of women killed by abortion has probably increased since legalization.) No realm of truth has suffered more than history, as professional historians repeatedly prostituted themselves in an effort to convince the Court that abortion was a traditional common-law liberty, or that 19th-century abortion laws were intended to protect maternal health, not fetal life.

Similarly, in the 1990s we were told that intact dilation and extraction (partial-birth abortion) was a procedure rarely used, only in the hard cases like Christiansen’s. In fact it was commonly used, and almost always on healthy children of healthy mothers. Ron Fitzsimmons, executive director of the National Association of Abortion Providers, admitted that he had “lied through my teeth” to Congress and the American public. (Partial-birth abortion was a means to ensure that late-term children were not accidentally born alive and to spare mothers and doctors from the embarrassing infanticide issue. Thus pro-choice Democratic senator Daniel Patrick Moynihan said that partial-birth abortion was “as close to infanticide as anything I have come upon.”)

On pushing the infanticide envelope, abortion-rights extremists have overplayed their hand. It should come as no surprise that pro-life legislators are now standing behind an unlimited right to life.

Paul Moreno holds the William and Berniece Grewcock Chair in Constitutional History at Hillsdale College, where he is a professor of history and dean of social sciences.

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