Lifewatch: The First Step—In Ohio

I saw Jack Willke in the offices of the National Right to Life in July 1989, on the day that the Supreme Court handed down its decision in Webster v. Reproductive Health Services. Willke had been, for many years, the president of National Right to Life, shuttling between Washington and his medical practice in Cincinnati. On this day, his face was flushed with the excitement of victory, after so many years of effort. The Supreme Court had taken the first steps to return the matter of abortion to the legislatures in the States, and it held out the prospect that the legislatures could begin protecting the lives of unborn children even in the period before “viability.” From that day forward, we expected that events would move, steadily, in a pro-life direction.

What we did not expect was the panic that set in among many politicians who had been nominally pro-life. As Willke says now, looking back, the pro-life movement went on the downward slide from that day of decision in the Webster case. The party of abortion crystallized the issue as “the woman’s choice,” and for some curious reason, that slogan found a deep resonance, even among people who professed a strong aversion to abortion on demand. Willke has never exactly been innocent of the world, but the experience impressed him powerfully with the importance of labels and marketing. “The Woman’s Choice” turned out to be a winner.

As the pro-life movement began to lose politically, Willke became more and more convinced that the movement had to seek its ends outside of politics. The plainest course was to return to home ground: The movement might provide that basic “education” about the child in the womb that the politicians, the press, and even the schools, were reluctant to teach. With that sense of mission, Willke set off to found the Life Issues Institute in Cincinnati, as the center for this new venture in education.

At that same time, he became quite wary even about the kind of legislation that sought to restrict abortion. He began to post warnings about the measures he called “horizontal” restrictions on abortion: Imagine a bar, or line, extending horizontally, measuring the length of a pregnancy. We could remove that segment marking the period beyond the first trimester, or beyond “viability” at 20-24 weeks; that is, we could restrict all abortions beyond those points. And yet, ironically, the risk here involves the construction that Alexander Hamilton referred to as a “negative pregnant— . . . a negation of one thing and an affirmance of another.” A law that forbids abortion beyond the first trimester implicitly confirms in our statutes the legitimacy of abortion in the remaining months. And that remaining period just happens to contain the phase of the pregnancy in which 90 percent of the abortions in this country are performed.

Willke far preferred the kinds of restrictions that would make no concession at all, in principle, to the acceptance of abortion. If the laws forbade, say, abortions that were performed solely because the fetus was a girl, or because the child was likely to be born with Down’s syndrome, nothing in these restrictions would imply an acceptance of abortion in any other case. Unless, of course, the very presence of the law would be taken to imply a permission on all of those other cases on which the law preserves its silence. For that reason, many in the pro-life movement seem to be edging away from any use of the law.

In a recent conversation, Willke expressed his dubiety even about laws aimed at restricting the use of abortion for “sex selection.” Who, after all, will admit that they ordered up the abortion with that motive? Willke’s own preference now runs more strongly in favor of the laws that teach. More candidly, of course, they mandate—they require—the supplying of information.

Under the infamous Casey decision, in June 1992, the Supreme Court upheld provisions on “informed consent,” and Willke finds, in this small concession, the instrument that can produce a vast effect. When I reached him recently by phone, I found Willke once again in buoyant mood, with a renewed sense of hope: In a matter of days, a new law on informed consent would take effect in Ohio. There had been the usual attempt, by the usual suspects, to block the law in the courts. But the challenge was swept away in the name of a law that sought to advance “the woman’s right to know.” The labeling, once again. That description, he is convinced, played no small part in gaining assent to the new bill.

But mottoes aside, the legislation in Ohio will require doctors to sign a document, certifying that they have given, to the woman seeking an abortion, a small booklet issued by the State. The pregnant woman must indicate in turn that she has received the pamphlet. The law then installs a “waiting period” of 24 hours, which will give the woman time to look through the booklet and reflect.

The booklet is easily scanned; its contents readily absorbed. There are few pictures, but an array of notable facts about stages in the development of the child, from the day of fertilization to 38 weeks. A photo appears of an embryo of eight weeks, instantly recognizable as a miniature child, with eyes, ears, fingers, toes. The caption reports that the photo, about three inches high, is twice the actual size of the embryo. And that report actually deepens the charm of the discovery.

At ten weeks, “the fetal heart beat can be detected electronically.” At 20 weeks, another photo shows a precisely formed face—precise enough that, when the child is viewed through ultrasound, there may be disputes now over the resemblance of the baby to the mother’s family or the father’s. Again, the photo is about three inches high, and if anything, it is even more startling to discover that the actual child, this finely articulated being, is two-thirds the size of the photo.

The account advances to the report that, at 32 weeks, virtually all “babies” born now will live. As the booklet reaches the point of birth, it highlights the report that, if the woman decides to give birth, the doctor who supplied the booklet will also inform her just “where to find medical and financial help, as well as counseling.” The booklet then concludes with some gentle words on adoption—along with an 800-number printed in large type. Nothing coercive, nothing leading. There is not even a suggestion that one “ought” to choose adoption rather than abortion. And yet, it is hard to imagine that this booklet—and this new law—will not have a pronounced effect. But we shall soon know: before the end of a year, the figures should tell us just what difference this new law has made.

My own hunch is that the law will make a notable difference, and the same provisions can quickly spread to other States. But then, what do we make of this? From other parts of the country come letters from older people, veterans of the pro-life cause, who respond to my question about the moderate “first step”—and then seem to glide past the question. Instead of offering proposals for first steps in the law, their inclination is not to seek laws at all, but more education, more exhibits and booklets. In part, this reaction may reflect “the politics of exhaustion,” or a politics that has failed, dramatically, for the pro-life movement. The impulse here, quite understandable and wholesome, is to move beyond politics altogether, to touch the hearts and the understanding of the public. For all we know, the volunteers and teachers may succeed where the politicians have failed. And some may find, in the experience, a lesson of uplift.

But that state of affairs may also confirm a depth of failure in our common life. If there is a moral character to that common life, it must find expression in our laws; it must bring forth, perforce, a political life. But what does it say about our condition that we have never possessed a government grown larger, or a more swollen professional class that makes politics its vocation—and yet, never have we possessed a political class less able to bring forth men capable of addressing, in public, a serious moral question.

In the end, however, there will be no getting around the question of the laws. For the fact of the matter is that our problems have sprung from the laws and the judges; the corrective must come, in good part, from the laws. If the program of “informed consent” yields some benign results, it will be mainly because the obligation to inform women was mandated by the law. But even if large portions of the public are drawn away from abortion, we would still have in place an engine, ever whirring, to promote abortion through our public policy: to introduce experiments with fetuses in the National Institutes of Health; to advance the abortion interest, in short, in every place it touches. For every instance offers but another means of reiterating and deepening a lesson about the rightness of abortion. The only thing that can break this trend is a move to begin planting in the law once again the premise that there is after all—there is still—something wrong about abortion. And that will bring us back to the problem of the Modest First Step.

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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