Every organization or movement needs to pause occasionally and take a critical look at itself: its goals, its agenda, and its tactics. Businesses stage “retreats.” Nonprofits schedule “in-service” days. Schools undergo periodic accreditation visits. They do so to refresh and, if need be, to revise their strategic vision. Then they recalibrate their practices in light of missions accomplished and failed, doors opened and closed, tactics that work and ones that don’t.
Social justice movements are no exception. Assessing them is complicated, however, because they tend to be made up of many different organizations with distinct but complementary missions. This is true of civil rights groups, environmental advocates, immigration reform outfits, world peace organizations—and the pro-life movement.
With due recognition of its many components, then, let’s ask: how might the summary of its strategic reassessment read, on this forty-first anniversary of Roe v. Wade?
First, there would be—and should be—thanksgiving and even joy. It is evidence of Divine Providence and proof of human love that we are here at all. Quick quiz: which other developed democracy can claim a pro-life movement that is a fraction of the one in the United States? Answer: none.
And there would be none in America, according to the Supreme Court. In 1973, the Court anticipated that Americans would peacefully embrace abortion as they had already embraced (with a push from the Court) contraception. There would be no pro-life movement, they thought, because the sexual revolution demanded abortion. There would be none because the last citadel of resistance to that revolution—the political sway of the Catholic bishops over rosary-praying, bingo-playing parishioners—would soon be a memory (again, with a push from the Court). There would be none, too, if we had obeyed the Court in 1992, when Casey v. Planned Parenthood sanctimoniously called on the contending sides of the abortion controversy to stand down, because, well, the Court had spoken.
But we pro-lifers are still standing. And marching, and voting, and protesting, and counseling. We are still joining crib clubs and running diaper drives. The Court’s great expectations have been confounded. We took up this hard but essential work, work that so many other nations declined. Americans of all faiths answered the call to serve—to try to save—the least among us. It is a task that brings spiritual rewards but yields few earthly treasures. Prayer has sustained us all the way. We can rightfully delight in the fellowship we have forged while on this path.
We have done more than simply persevere. We have succeeded on many fronts. Sidewalk counselors and women’s care centers have saved countless babies. They have saved countless women’s lives too, from the moral disintegration that they would have suffered by aborting their son or daughter. All pro-lifers have contributed to these rescues, by promoting a culture of life that made these front-line interventions possible and these rescuers’ messages plausible.
We have, for example, limited government funding for abortion, starting with the Hyde Amendment in the mid-1970s. These limitations are important, because government funding would credential abortion as morally respectable and even good, which is precisely why Planned Parenthood and their allies push back so hard against de-funding. They know, too, that it is not about money. It is about moral stigma.
The HHS abortifacient mandate opens up a back door to removing that stigma, and it will not be long before RU-486 comes knocking. That abortion “pill”—really a pharmaceutical regimen—is presently used up to nine weeks of pregnancy, but it is clinically just about as safe and effective all the way through the first trimester. Within a few years, these “chemical” abortions are likely to be the dominant mode of abortion up to around thirteen weeks. The next Democratic administration might well add RU-486 to the list of essential services covered under Obamacare. This prospect makes opposing today’s mandate all the more critical.
In any event, the pro-life movement will be dramatically affected by abortion’s migration from stand-alone physical locations to over-the-counter, and over-the-internet, pill deliveries. Women’s care centers will have to discover new ways to step between pregnant women and the temptation to abort by taking a pill. Sidewalk counseling will inevitably be limited. Fewer big-box abortion mills to legally regulate and peacefully picket means fewer abortionists to stigmatize as accomplices to the exploitation of pregnant women. Indeed, the whole argument about women as victims (too) of abortion may have to be recast. It is hard to see how it could be without losing some of its telling effect.
Yet we have succeeded in the argument that lay at the heart of Roe. Harry Blackmun wrote for the Court that the case for abortion rights “collapses” if the unborn are persons. They are, of course. They were on January 22, 1973. Not even the Supreme Court of the United States could alter that moral reality (as I argued at Public Discourse last year). But the justices could try to erase the unborn from the law, to make them invisible victims of lethal attack, to silence them. In this they have failed. Others have spoken for them.
The main part of our reassessment summary has to start with this amazing accomplishment: in most states and in the federal jurisdiction, statutes passed since Roe establish that, with a momentous proviso reserving to pregnant women their Roe entitlement, unborn babies are human beings with the same legal right not be killed that you and I have, and that Harry Blackmun had. In some of these statutes, the unborn baby is explicitly deemed a “person.” In others, that is the functional effect. These are often called, generically, laws against “feticide.” The federal version, signed by George Bush in 2004, was called “The Unborn Victims of Violence Act.”
Pro-lifers should not hesitate to take just credit for these legal victories. They deserve it. But the achievement is also owed to science and industry, which delivered the machines that made us see. Sonograms and revelations about DNA-driven fetal development have convinced all but the willfully blind that, just as the embryo is, I was. Bad men contributed to the achievement, too. Bad men like Scott Peterson, whose murder of wife Laci and unborn son Conner is now emblematic: two victims, two counts of murder, and two terms of imprisonment. In fact, the federal feticide law states that it may be referred to as “Laci and Conner’s Law.” These laws both reflect and promote recognition of the unborn’s common humanity. They were shaped by a culture of life and contribute to it.
Almost no one now speaks of the unborn as “tissue,” a “blob,” or an internal organ of the mother. Most abortion proponents no longer speak of the unborn at all, because there is nothing they could plausibly say that would serve their “pro-choice” cause.
President Obama is the most pro-abortion Chief Executive we have ever had. Today, he will celebrate Roe as a victory for gender equality, as he did last year, and the year before that. He will say that it ensures that every girl has the same options in life as every boy. He will be speaking, of course, about only those girls and boys who are not aborted by their mothers. President Obama will not draw his listeners’ attention to the tiny broken bodies upon which his scaffold of “equality” rests.
The goal of the pro-life movement has been to convince Americans that abortion is wrong chiefly by making them see what abortion really is: killing an innocent human person for reasons that would never justify killing anyone else, including an infant once born. We thought that convincing people to recognize the victim as a brother or sister would lead them straight away to oppose abortion. The ethics would follow smoothly from the metaphysical truth about the unborn child’s status as a “person.” The Roe Court understood this idea well enough. That is why the opinion denied “personhood” to the unborn. It is why the justices declared that, otherwise, the case for abortion would “collapse.” The Court presumed that if that unborn’s “personhood” could be shown, the law governing abortion would have to be the law governing homicide more generally.
Before, some saw through a glass, darkly. By now the pro-life movement has made us all see clearly. The President’s discrete silence reverberates throughout the abortion-rights constituency. It is an implicit recognition of what abortion really is.
Yet we have not won. We are not even winning. And the pro-life movement faces challenges greater than it has ever confronted.
The number of annual abortions is trending down a bit, but there are still more than a million annually, and Roe v. Wade is more secure than ever. Almost two-thirds of Americans favor abortion-on-demand for the first trimester, and even more in “hard cases” thereafter. These “hard cases” include not only rape and incest and “life-of-the-mother” exceptions. They also include cases where the woman’s “health” is “at risk.” If the people had their way (and depending on exactly what “health” includes), the total number of abortions annually would be little different.
These numbers have not changed much over thirty years. It is hard to see what could make them change now, because abortion is more institutionalized than ever before. It is more embedded in our way of life. It has become a deep structural support of the way we Americans—most of us, anyway—choose to live. This is what the Casey plurality meant in 1992 when it affirmed Roe, because two generations of American women had come of age depending upon access to abortion in cases of contraception failure. Women could not participate equally in our nation’s economic and political life, said the justices, without it.
In the twenty-two years since Casey, our government has assumed even greater responsibility for maintaining conditions in which everyone can have safe and pleasurable sex without unwelcome consequences. The HHS mandate is one example. Laws and cultural norms that prohibit recrimination or criticism of anyone’s sexual “identity” are others. I cannot think of any reason why we should judge that this movement toward abortion as an indispensable, even if regrettable, presupposition of our way of life has crested. It is a linchpin of our culture.
The stunning fact upon which any pro-life reassessment must focus is this: Americans’ beliefs and practices about abortion have digested the truth about the unborn with nary a hiccup. A growing number of Americans say that they approve of abortion, even though they regard it as “murder.” Our feticide laws imply the same. No other description applies where Scott Peterson is sentenced for murdering his child while an abortionist could do exactly the same thing with impunity—if invited to do so by Laci Peterson. The act cannot be killing a person for Scott but not for the abortionist. All that a pro-abortion apologist could honestly say about it is that the abortionist was somehow justified—and that Scott was not.
We established that the unborn are persons, but somewhere along the way, our fellow Americans revised their view about what counts as justified killing.
The argument about abortion from this point forward is about ethics, not status. It is about justice, not about “personhood.” It is about establishing that, even if an abortion would be advantageous (up to a point) for a woman—and even if abortion rights are a boon to women’s general social prospects—abortion is always gravely unjust. For that reason, it is not to be done. A just society must prohibit it.
The pro-life movement will have to speak in starkly moral terms. We will have to press the issue of justification, even at the risk of discomfiting some allies and listeners and bringing out the worst in our adversaries. This is for two basic reasons. One is that our success on the “personhood” issue forces us to make the ethical argument. The other is that our society is becoming one in which any woman whose circumstances tempt her to abort her baby will need more (not less) courage to say “yes” to life. We should provide every material resource and emotional support that we can to her. But, in the end, she is going to have to summon the moral courage it takes to do what is right, because it is right, and there is an end to it.
We owe it to her to help her find and deploy that moral strength.
Gerard V. Bradley is Professor of Law at Notre Dame Law School.