Lifewatch: The Strategy of ‘The Modest First Step’

It is hard to recall now the euphoria felt in the pro-life movement nearly five years ago, in July 1989, when the Supreme Court handed down its decision in Webster v. Reproductive Health Services. For it appeared that the Court had taken the first step in the overruling of Roe v. Wade. Chief Justice Rehnquist explained, for the majority, that the old framework of trimesters, set forth with witless precision in Roe, could “not be found in the text of the Constitution or in any place else one would expect to find a constitutional principle.” As a consequence, the marking of trimesters would no longer define the barriers to legislation. Legislatures in the separate States would be free then to protect the unborn child, or the “potential life” in the womb (as some of the judges had it), and they did not need to be restrained any longer by the artificial marking of months.

As Rehnquist suggested, the legislatures might try to protect life from the very beginning, as indeed the legislature in Missouri had sought to do. Still, the Webster case offered no example of a woman actually seeking an abortion in the early stages of pregnancy, and so the Court was given no occasion, in this case, to uphold a restriction on the performance of an abortion.

And yet, the critical step seemed to be taken. The question of abortion, reserved to the exclusive authority of the courts, would now be returned to the arena of legislation in the separate States. From that point forward, as an old saying used to go, it seemed to be a matter of filling in the places after the decimal point: To return the matter of abortion to the arena of politics was to put the “right to abortion” on the path of gradual, but certain, restriction. For we all knew precisely what the surveys had revealed for years about the aversions of the public to abortion, and especially the hostility, running deep, to abortion on demand. And so we assumed that day, in July 1989, that Justice Rehnquist, with the most delicate touch, had set off a new dynamic that would eventually bring a turnabout in the laws on abortion.

That conclusion was half right. A dynamic had been set off, but it moved dramatically in the opposite direction. One pro-life leader has recently noted, in a moment of searing candor, that from the day of decision in Webster the pro-life movement suffered a steady decline in support. It was not that the public had suddenly altered its opinions, but that a panic had set in among the politicians. For years, many congressmen and legislators were content to strike pro-life postures and declaim on the need to return the issue of abortion to the domain of legislators. But now that their wishes had been granted, now that the issue of abortion was put back in their hands, these politicians evidently found that they had nothing to say. At the same time, they were charged, by the opposition, with a desire to dispossess women of their fundamental rights and make all abortions in the country illegal (a state of affairs that had not existed, even before Roe v. Wade).

At this moment, politicians with any wit or purpose, might have been expected to disarm the opposition. They might have moved comfortably into the shelter of that common opinion they shared with most people in the country: They could have offered a modest first step to start restricting abortions in the places where there was an overwhelming consensus in the country about the wrongness of these surgeries. And so they might have suggested, as a first step, that we restrict those abortions performed late in the pregnancy, or after the point of viability. They might have proposed to restrict the abortions performed because the child happened to be female, or because the child might be handicapped.

Politicians seasoned to their vocation might have offered any of these proposals, knowing that they would safely place themselves within a broad consensus among people of moderation.

But a surprising number of nominally pro-life legislators exhibited none of these political reflexes. Many of them apparently decided, with Burke, that refined policy is ever the parent of confusion. Or they judged that the public would simply not understand any attempt to refine the issue in this way, by talking about the different conditions under which abortions may be justified or unjustified. But of course, that is the way that most people do talk about abortion. Yet, that was more refinement than most politicians could brook. Many of them thought that the public demanded a simple, uninflected “yes” or “no” on abortion, and an answer of “no” seemed no longer thinkable. The result is that politicians like Jim Courter (in New Jersey) did a turn of 180 degrees and suddenly declared themselves reborn politically as “pro-choice.” With Courter, as with many others, that “rebirth” was the beginning of their political death. The contempt they elicited among their former allies was readily matched by their newfound friends.

Still, panic is not exactly rare among politicians and journalists. It can be relieved mainly by the leadership of a President, through the simple expedient of framing the issue in public. The Webster case was decided in the first summer of George Bush’s presidency, when his polls were running high. Bush could readily have averted the panic among Republican politicians at all levels if he himself had simply endorsed any one of these modest measures as a first step, which all Republicans (and even many Democrats) could support with little strain. But what was his response? No one who saw him on television, on the day of the Webster decision, will easily forget his performance.

The news was brought to Mr. Bush when he was on a golf course, about to tee off. The first question from the reporters came when Mr. Bush had a wooden tee clenched between his teeth. So smitten was he by the power of the moment, by the unsurpassing seriousness of the question, by the vast new possibilities suddenly opened for the saving of lives, that he was not inspired even to remove the tee from his teeth. Through clenched teeth, he pushed through his lips a string of words to the effect that “We’ll have a statement on that later.” It was, in other words, a subject not worth addressing.

In the reckoning of score cards, George Bush stood firmly with the pro-life movement through a train of vetoes and executive orders. Between him and his successor in the presidency there is, for the pro-life movement, no real comparison. But my friend Robert George, of Princeton University, remarked in a telling phrase that “George Bush has been all action, and no talk!” And yet, talk is precisely what we needed. Disarming talk. The talk that removes abortion from the domain of vast abstractions, and reminds us in fact how we can begin talking about it again: Under what conditions do we now permit abortions to take place in this country? Under what conditions do we readily agree that abortions are not justified? Even the kind of talk that merely raises questions would at least have the value of breaking out to the public news, or information, that most of the public would find novel—most notably that abortions could be performed legally through the entire nine months of the pregnancy.

The pro-life movement has learned at least this lesson over the past dozen years: It may be quite easy for politicians to endorse a constitutional amendment to protect human life, an amendment that they know has no chance of passing. And that grand gesture buys for them a release from any obligation to discuss the issue with any particularity, or defend any concrete proposal that would actually prevent some abortions. I would suggest that pro-lifers reverse this weighting of their ends as they head into the coming election years. They should understand that, of course, they are seeking eventually the protection of human life at every stage. But I would propose now for the pro-life movement the strategy of The Modest First Step.

Any candidate who would seriously solicit support from the movement should be asked this elementary, but utterly necessary, question: What modest first step are you willing to propose, defend, speak about, as a beginning on the path toward the restraining of abortions? What modest measure might help establish the simple point in principle that abortions, under certain circumstances, are unjustified and may be restricted? In this field of possibilities, the endorsement of a “24-hour waiting period” is not good enough, for it still leaves unrestricted the right to order an abortion for virtually any reason. A proposal may be modest, but it should involve the actual restraint of abortion, even in a small number of cases.

In its generous nature, the pro-life movement has shown an ample willingness, over the years, to accept any number of these moderate measures. Some people would seek to restrict abortions, at first, in the third trimester, or after the point of viability, or after eight weeks of pregnancy. Others would start simply by trying to protect the child who survives the abortion. All of these proposals have their arguable points, and I will discuss them in the months ahead. But they are all advanced as “first steps,” for the purpose of establishing a point in principle, and advancing the argument. Politicians should be aware, by this time, that there is a large inventory of such moderate “first steps.” If none of these measures draws their interest, then the pro-life movement should be frank to say in turn that it cannot summon even the faintest interest in politicians who will not meet this minimal threshold of seriousness.

The readers of this journal have been generous in writing to me, with news and suggestions; and I would invite here their own proposals in this vein. The leaders of pro-life groups often come together in meetings, and I would put before them the suggestions that are brought forth. The pro-life leaders have been exceedingly generous over the years to politicians who have made friendly gestures without, however, condensing their hazy sentiments into measures concrete. But the seasons of experience may have delivered us now from that state of affable acceptance. In their commerce with politicians, the pro-life groups may be moved now to insist—with a good temper, but with utter firmness—on that First Modest 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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