Lifewatch: Congresspeak

Congressman Henry Hyde (R-Ill.) was not permitting himself to be deflected during the serious work of debating, line by line, the provisions in the so-called Freedom of Choice Act (H.R. 25). Hyde and his pro-life colleagues were offering resistance in the Committee on the Judiciary, and finding every one of their amendments blocked by the Democratic majority. At one moment, in a comment made in passing, Hyde remarked to Representative Patricia Schroeder (D-Col.) that the language of “reproductive rights” was itself rather bizarre. “I don’t know,” he said, “what abortion has to do with ‘reproduction.’ ”

But in the advocacy of abortion, language has long ceased to be tethered to the actual experience of abortion, and the work on H.R. 25 has now produced a further refinement: the language of the sponsors, so moderate and routine, bears little connection to the grisly killings they are willing to license as a gesture of liberality, a gift borne of the most tender sympathy. In these arts of legislation, Congressman Don Edwards (D-Cal.) has made himself the most seasoned practitioner. Edwards has been the leader in managing H.R. 25, and it is no idle sign when Edwards evidently feels the need to preserve the face of moderation. At every moment, in describing the new bill, he has taken care to say that the Act would secure the right to abortion up to the point of “viability.” Of course, it turns out that he and his colleagues have resisted every attempt to protect the unborn child even after viability. But then why the pretense? Why the suggestion that “viability” marks any serious barrier for the “right” to order an abortion?

In the first place, there is a need to preserve the charade of Roe v. Wade. The proponents of FOCA have declared that they mean merely to secure, in the law, the rights articulated by the Court in Roe v. Wade. But for 20 years the media have helped to preserve the false impression that Roe created a right to an abortion only through the first trimester of the pregnancy. The managers of FOCA have a need to maintain that fiction, to conceal just how radical was the law fashioned by the Supreme Court. But with the same logic as the Supreme Court, the legislators would now undercut every restraint on abortion cast up by local laws. Thirty states currently have laws barring abortions in the third trimester. Those laws have never been sustained by the Supreme Court, but they would all be overridden now by the Freedom of Choice Act. Swept aside, at the same time, would be the conviction of Dr. Abu Hayat, in New York. In that recent, notorious case, Hayat was convicted for an abortion he performed on a woman who was 30-32 weeks pregnant. In his artless attempt to dismember the child, he succeeded only in severing the arm of the baby who became Ana Rosa Rodriguez. Hayat now is appealing his conviction, and with the Freedom of Choice Act, convictions of this kind would be foreclosed, because the laws that sustain them would be dissolved.

A first-year Congressman, Charles Canady (R-Fla.), invited the managers of FOCA to do something as unsettling as honoring their own words. If Edwards professed to cover only abortions before the stage of “viability,” he would seem to imply that abortions beyond that point were open to some form of restriction. In that case, Canady offered an amendment that would “allow” (not “require”) the States to impose limitations on abortion after 24 weeks of gestational age. That is a fairly conservative figure in estimating viability, but the Democratic majority would have none of it. As the majority declared in its report, “viability is a medical determination… [and therefore] it must be a matter for the attending physician.” In other words, as Canady pointed out, the decision would be left in the hands of the abortionist himself to decide whether he is performing an abortion at a time barred in the law.

As a feint toward moderation, Schroeder and Edwards would not contest Canady on any point of principle. In meeting his challenge, they would not affirm that there is something desirable about abortions late in term. Schroeder and Edwards come to the matter from a more oblique angle. Most abortions, they point out, occur in the first trimester; only about one percent of abortions are performed after the twentieth week of pregnancy. Schroeder suggests that the main reason that women delay into a third trimester is that they are trying to preserve a pregnancy in the face of serious risks. To cut off the prospect of the abortion may simply propel those women into earlier abortions and forego the lives that might be saved.

But again the language is out of scale. “Only one percent” of 1.6 million abortions means about 16,000 children. In 1984, Surgeon General Koop drew on a report from the Center for Disease Control and estimated that there were about 4,000 abortions performed each year beyond the twenty-fourth week of pregnancy, into the third trimester. Is that so trivial a figure that it would hardly be worth the strains of drafting a law for the sake of protecting these children? If we hold back, it could not be out of a concern for the life of the mother, for that interest has never been endangered. Under the common law, the life of the mother was already a defensible ground for abortion, and that understanding would be incorporated in the Freedom of Choice Act. No attempt, then, to restrain abortions in the last trimester could possibly bar a woman from choosing an abortion if her own life were in danger. And that cannot be the interest that drives Schroeder and Edwards.

Philosophers they are not, but they understand, with a gut savviness, that they cannot attach any real importance to the condition of “viability” without compromising, gravely, the case for abortion. They understand that they cannot accept even the most modest restraints on abortion without implying that the life of the child counts, after all, for something; that it claims weight, and standing, in the law. And once it is recognized that the unborn child may claim, at some time, the protection of the law, the law is likely to be extended, and the “right to abortion” may begin to unravel. That is why Edwards and Schroeder cannot brook the slightest concession, even for the sake of accommodating a sentiment that is powerfully held in the American public. But that is also why the Freedom of Choice Act seems to hang now by the slenderest thread.

The deep perplexity of the Democrats, and their political predicament, was reflected rather well in the hearings by Congressman Glickman (D-Kansas). As Glickman suggested, his own constituents may be tolerant, but they are certainly not prepared to accept abortions up through the end of pregnancy for virtually any reason. Glickman warned his colleagues that they would have to make some serious effort to define the “medical” reasons that could justify an abortion in the third trimester. If the “distress” of the mother was sufficient to count as a “medical” reason, then there would be no meaningful restraint on abortion at any time. And yet, Rep. Glickman is, in Samuel Johnson’s phrase, one who thinks clearly but faintly. He pronounced his warning, but then he folded himself in comfortably with most of his Democratic colleagues in rejecting Representative Canady’s amendment. When he came, in other words, to the point of decision, he did nothing to protect children, even from the most sadistic abortions performed late in the pregnancy. In that respect, he is indeed a representative man, for he reflects with a chilling precision the state of his party: clear-sighted, with refined intuitions, and at the core, a want of moral seriousness.

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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