Life Watch: A Shift in the Landscape

Had something crept into the heating system of the Capitol? How else to account for the scenes we were now witnessing on the floor of the U.S. Senate in the middle of May: Senator Barbara Mikulski, hardly known for her subtlety—or any special concern for unborn children—was suddenly putting severe questions to her leader, Senator Tom Daschle of South Dakota. Was he really serious now in offering an alternative to the bill on partial-birth abortions? His own bill claimed to ban all abortions after the point of “viability” unless the pregnancy “would threaten the mother’s life or risk grievous injury to her physical health.” The pro-lifers claimed that this formula contained enough room for evasion that it rendered the bill itself meaningless as a restraint on abortion. But Senator Mikulski now earnestly asked her colleague: Could he offer assurances that this was no empty gesture, that his bill would actually forbid abortions in the late stages of pregnancy?

That this question could be pressed by a Democrat—and by another Catholic defender of “abortion rights”—must be taken as the sign of a notable shift in the climate of opinion. Of course, it has been the design of the pro-life movement to bring about that shift, and yet when we see it played out before our eyes, it seems astonishing nevertheless.

The first startling sign was the Daschle bill itself and the rhetoric that enveloped it. Daschle was quoted as saying that if the supporters of abortion thought he was giving something away, “they’re right and we’re doing that”:

But I don’t think you can sustain that argument in the country, that you ought to have an abortion simply because of an inconvenience or a moderate difficulty…. I think we’ve got to say the only way you could terminate a life is if a grievous set of circumstances requires it.

This kind of language has not been heard from Democrats in the Senate since the days of Tom Eagleton—and not from anyone in a position of leadership in recent years.

What made the prospect all the more intriguing was that, in the gloss of the bill, it was explained that a physician would be required to “describe the medical indications” supporting the judgment that the pregnant woman was facing a serious danger to her life or health. Something, evidently, had changed. And some of us were sufficiently intrigued that we wanted to know more—or to have some conversations with Senator Daschle. But it was not until the last hour, at the threshold of a vote, that Daschle’s staff agreed finally to meet with Helen Alvare of the Office of Pro-Life Activities of the Bishops’ Conference. There was an understandable wariness on the part of the pro-life lobbyists on the Hill, who have made this issue their vocation. The bill seemed to offer, in the language of one veteran, a “strategic cul de sac”: a device for luring in the pro-lifers, who would find that they had been drawn away from the bill on partial-birth abortions, only to discover that this new measure would lead nowhere and restrict no abortions.

But it is worth recalling for a moment why so many of us were so intrigued by the Daschle bill and anxious to learn more. Even if Daschle had been thoroughly insincere, the bill seemed momentous in itself: The Democratic Party would accept the notion that Congress has the legislative authority to restrict abortions, and this first step would provide the ground for a continuing series of further steps, removing one after another of the grounds for abortion. Beyond that, this move would mark a willingness on the part of Congress to take up again its responsibility to act as an interpreter of the Constitution. For the Congress would be acting here, with the president, to narrow the “right” declared in Roe v. Wade.

With those prospects beckoning, the Daschle bill was bound to stir an interest among the pro-lifers. But then the doubts began to spring, from the core of the bill itself. The draft proclaimed it “unlawful to abort a viable fetus unless the physician certifies that continuation of the pregnancy would threaten the mother’s life or risk grievous injury to her health.” The “continuation of the pregnancy”? Wasn’t this bill supposed to be about unborn children who are “viable”—with a decent chance, that is, of having their lives preserved outside the womb? In that event, the critics asked, why not deliver the baby? A pregnant woman affected with cancer could have the cancer agitated by a surgery late in pregnancy, but that risk is likely to be present with an abortion as much as a delivery. It is hard, in fact, to identify any danger posed to a pregnant woman late in pregnancy that would be remedied by the killing of the child. And yet, under the language of the bill, the presence of a danger to the mother would be taken as a sufficient license for destroying the child. Why not weave into the bill some language to the effect that the first preference is to deliver the child? And then the burden of evidence could be placed on the doctor who claims that the delivery would endanger the pregnant woman.

Of course, Senator Daschle might protest with some reason that his bill, after all, made it “unlawful to abort a viable fetus”: The presumption would be set, in sweeping terms, against an abortion—which is to say, in favor of delivery. Daschle also claimed that this bill, in its reach, would be vastly more important than the bill on partial-birth abortion, which bans only one procedure. “We ban all of those procedures [late in pregnancy]!” he declared, “All of them!”

But in that case, the question had to arise: Why was this bill brought forward as the liberal alternative to the bill on partial-birth abortions? If it is a far more sweeping measure, why should it not simply be added as an amendment, a subsection, of the current bill? Might it even be the more ambitious second step, after the first step had been taken with the banning of partial-birth abortions? Daschle’s claims for his bill would be warranted only if the bill actually encompassed all of the abortions banned by the bill on partial-birth abortions—and more besides. But the bill could stand as an “alternative” only if it left out of its coverage some of the abortions that would be banned in the bill on partial-birth abortions.

In fact, most partial-birth abortions occur in the fifth or sixth months of pregnancy (twenty to twenty-four weeks), while viability may be achieved in twenty-three to twenty-eight weeks. Clearly, the Daschle bill was meant to reach far less deeply into the pregnancy. The bill would make a pro-life gesture in restricting some abortion, but for the purpose of shoring up the right to abortion in those first six months, when more than 90 percent of abortions are performed.

Still, in the haze generated by the bill, it seemed all the more remarkable that so many senators were able to see through these clouds of benign intentions, thickly proclaimed. The Daschle bill went down in a vote of 64-36. Fifty-three Republicans voted against it (two for the wrong reasons, because they were strongly pro-abortion), and only two supported this alternative. There would seem to be a virtual outbreak of clearheadedness. Either senators have become utterly wise to these issues, or they have become quick studies, responding to staffs who are up-to-speed on this subject.

Yet, what was creating this crisis for the Democrats? President Clinton was already signaling, clearly, that he would veto the bill. Apparently, the word on partial-birth abortions has finally diffused through the country, and the level of tension has been rising. In Wisconsin, the two Democratic senators were faced with petitions for recall because they refused to support the ban on partial-birth abortions. If Clinton vetoes the bill, it means only that the Democrats will have to suffer the embarrassment of voting again in a move to override the veto—and then vote on it yet again in the next Congress, when it is reintroduced, as it surely will be if Clinton vetoes it.

Something has taken hold. There is something new in the landscape, and the pro-lifers would be cloddish if they did not seek to explore the opportunities that lately have been revealed. I would suggest this line: that we do not attribute to Senator Daschle, an interest that evaporates with the day, after the bill on partial-birth abortions has been passed. Let us, in fact, pursue some conversations, to see if there is a serious interest finally setting in among liberal Democrats to extend the protections of life and enact, in that vein, some real restrictions on abortion.

In the meantime, we hope that this minor miracle of the season will not be lost, along with its attendant lesson: What brought forth this movement among the Democrats in Congress was not a grand scheme of legislation—not a constitutional amendment or even a Human Life Bill. It was the most modest of first steps, to restrict but a handful of abortions. But that proved to be enough to stir deep tremors in the landscape and awaken, among liberal Democrats, the unsettling recognition that there are, in these surgeries, real people getting killed.

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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