Lifewatch: A Season for Turning

As summer’s lease expired, and we began tuning ourselves up again for the fall, there was a need not to let slip from us the revelations brought forth in that late, remarkable season: The party of abortion, at the peak of its confidence, brooked no compromise; it rolled through the House committee with the Freedom of Choice Act—and then ran decisively aground with the vote over the Hyde Amendment. A faction feeling its strength, and armed with zeal, was suddenly jolted in discovering the end of its tether. The partisans of abortion had found, in a sobering moment, the limits to their reach. And what became visible, at the edge of that reach, was an opposition that was now beginning to firm itself. We reported in this space last month the surprising vote garnered for the Nickles Amendment, which sought to remove abortions from the normal medical coverage for federal employees. Nickles had proposed a separate pool of insurance for abortion, unsupported by the taxpayers or by other federal workers, and this proposal lost only narrowly, by a vote of 51-48. Senator Nickles (R-Okla.) warned that the Clinton administration would be in for a stiff resistance if it sought to make abortion a part of a national health care plan, funded by all of the taxpayers in the country.

But it is virtually predictable that the Clinton administration will have to come forward with that proposal—and accept this encounter. And so, members of Congress are fated to discover, over the next year, that there will be no way to avert their eyes and rid themselves of this issue of abortion. It will be constantly before them in one form or another. As they become settled simply in the habit of voting, they will be establishing points that seemed to elude their recognition in the past. For one thing, it will become clear to them that they have, willy-nilly, settled a constitutional question: Apparently, the Congress does have the authority to legislate directly on the matter of abortion. It cannot be pretended any longer that the responsibility for addressing these questions rests exclusively with the legislatures in the States. This momentous step has been brought about in part by the deep-dish liberal theorists of the law — by commentators like Professor Laurence Tribe: When the party of abortion suddenly found itself in control of the Executive as well as the Congress, Professor Tribe happily produced an inversion of his earlier arguments and explained, with constructions suitably ingenious and contrived, that the federal government could indeed legislate on abortion after all (see Lifewatch, June—Ed.).

But beyond the constitutional question, the votes served up by the Clinton administration have brought out a firmness and resolve in the pro-life members that was conspicuously wanting only a year ago. Here, I can report with a direct experience. I was making the rounds in Congress last year with a modest proposal to engage the authority of the federal government directly in a simple, but notable step: to protect the child who survived the abortion. That plan was supported widely by pro-life groups, but before it could move, we needed a congressional sponsor. As I made the rounds with allies and advisers, the exercise seemed to be the equivalent of holding a light to the retina of a patient, and discovering, with that simple procedure, a vast amount of information about the state of the organism. What that examination revealed was a collection of senators and congressmen who had been pro-life, but who were now utterly exhausted and demoralized. The word was: Senator Danforth was too tired of this issue; he didn’t want to do anything more right now. Senator Gramm wanted to keep his distance. Jesse Helms was recovering from surgery. Orrin Hatch was fine, but he had “carried too much water” on this issue. It was only right that someone else show an interest in doing something.

But now, Senator Nickles has evidently summoned his own energy on this question, along with his outrage, and the Republicans in Congress have shown a wondrous cohesion in these early votes on abortion. If the pro-life forces suddenly find a firmness and morale that were wholly missing last year, there suddenly comes into view a prospect that seemed entirely beyond our reach a year ago: It is actually possible now to conceive a pro-life contingent that begins to take initiatives again, for the first time since the early 1980s. When the partisans of abortion find, on the floor of Congress, the limits of their reach, they indirectly mark off a terrain of possibilities for the pro- life members. For example, if there is a clear aversion to supporting abortions with money drawn from taxpayers, there is a host of possibilities for re-moving federal funds from clinics, or from programs in private schools, that provide abortions and implicate the federal taxpayer. If the public is rather clear in its opposition to abortions late in term, then it is within the reach of our ingenuity to frame a policy to restrict or discourage those abortions.

All of these prospects began to emerge from the deceptively languid days of this summer, and yet it is clear that everything must come in its sea-son. Pro-life forces are not yet ready to go over to the initiative in Congress. The confidence to cross that barrier will come later, after a series of votes, in which the pro-life members see again the evidence of their own strength. As politicians, with a sense of the game and its rhythms, they are likely to sense the moment when they would raise their own morale, and enhance their leverage, by switching over and playing offense. The Clinton administration can be depended on to play its own role in this drama, because it can be counted on to push ahead with its overloaded programs and provide ample occasions for voting.

For the moment, the initiative may shift to the states on a couple of strategic points. The Casey decision, in June 1992, might have been a dreadful decision, but it had the slender, redeeming feature of upholding the law in Pennsylvania. That law contained a requirement of “informed consent” and a waiting period of 24 hours. These modest provisions do have the effect of inducing some people to pause, to have a sober, second reckoning, and in some cases to back away from the abortion. The pro-life movement has been alert to these possibilities, and several states have moved to enact statutes here. One of the most promising statutes, framed with care — and with touches of deep cleverness — was enacted at the end of July in Michigan, and signed into law by Governor John Engler. On this statute, more later.

Laws of this kind have been accepted by Justices O’Connor, Kennedy, and Souter because these requirements are not in-compatible with a “right to choose abortion.” But that attribute also marks the limits of their utility for the pro-life movement. These kinds of laws cannot readily become part of a train of steps that will scale back the right to abortion, or force judges and legislators to consider again the ground of that right. In the meantime, we can expect a wave of new appointments to the federal courts by the Clinton administration, and we can expect liberal judges, old and new, to seize on any pretext to strike down these statutes.

The incentive is offered by the ad-vent of Judge Ruth Ginsburg to the Supreme Court. Her addition provides a new chemistry, and the Court, with her prodding, could become far more restrictive in judging the regulations for “waiting periods” or informed con-sent. At the time of this writing, the Supreme Court of Colorado has struck down the celebrated constitutional amendment, in that State, to bar statutes promoting “gays” as a class suffering discrimination, on the same plans as groups defined by race and religion. That decision by the state court bears no plausible strand of reasoning. It is intelligible only as a political move on the part of judges who are evidently betting now that Ruth Bader Ginsburg will provide the fifth vote for overturning the holdings of the Court on sodomy — and create, at once, a landscape with new possibilities. This, too, will become clearer as the season advances.

These moves by the Supreme Court will not be checked by anything taking place within the states. They can be checked only by a political sentiment that shows itself, forcefully, in votes in Congress. That kind of showing will draw the attention — and concentrate the mind — of a judge as politically attuned as Ruth Bader Ginsburg. But at the same time, it means that on the question of abortion as well, the action will have to shift back to Congress. Everything in season, but this moment surely is coming.

By

Hadley P. Arkes (born 1940) is an American political scientist and the Edward N. Ney Professor of Jurisprudence and American Institutions at Amherst College, where he has taught since 1966.

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