Life Watch: After the Election—Sifting the Debris

Let’s put things in perspective: If anyone had told us, six years ago, that in 1998 the Republicans would win control of both houses of Congress, and that the majorities organizing the Congress would have a heavy preponderance of pro-lifers, we would have regarded the prophecy as a pipedream. The good news, and the sober fact of the matter, is that the pro-life party prevailed, that it is still in charge.

But that is the end of the good news. The experience of the past few seasons has also brought home a truth, anchored in the Constitution: The country cannot be led from the Congress, or from the House. With the House in the right hands, many wondrous things could be done—if there were a compatible president on the scene to sign the legislation. When the president happens to be backed to the wall politically, when he is determined to show his radical feminist supporters that they cannot do without him, he becomes even more formidable yet, for he is willing to tie up legislation that bears even the mildest restrictions on abortion.

All of that, we came to know; but what we had not expected was that the Republican leadership would roll over and engage in preemptive surrenders. The Republicans became so anxious to avoid a shutdown of the government that they became willing to throw over the pro-life “riders” on bills before the White House would even demand their removal. In this way, Congressman Coburn’s attempt to impede the approval and marketing of RU-486 (the abortion pill) was discarded without a contest. Indeed, anyone with eyes to see could tell that it was a grand gesture, permitted by the managers, but des-tined for deletion at the end.

The whole landscape during the election was filled with good pro-lifers tripping into disasters. Some earnest people in Colorado managed to place on the ballot a proposal to bar partial birth abortions. But then these good folks were willing to fall back upon the moral sense of the electorate—with no sustained effort, however, to instruct that electorate or cultivate that moral sense. On the other hand, the forces of Planned Parenthood seemed to have vast reservoirs of cash to deploy, along with the credulity of the public: The cry went out that this bill was really a device for denying all abortions. That claim went largely unanswered, and it left the impression, among a public too busy to read, that people were about to be dispossessed of one of their fundamental rights. The result was that the Democratic vote was energized at the last moment, and the proposal was narrowly defeated. At the same time, Republican voters staged a strike against a leadership in Congress that they saw now as too temporizing on the budget, too bumbling, too hesitant to frame the argument against Clinton, and yet too much feigning to be clever.

But among the pro-lifers, the most striking disaster came for all of those lobbyists who had sought to fix the attention of the public on partial birth abortions. They needed but three more votes in the Senate to override Mr. Clinton’s veto, and it looked as though they would gain, not three, but five. In the end, they gained nothing. The election was a complete wash. A vote was gained in Ohio, but lost in New York, and in the end there was perhaps one more vote for the bill on partial birth abortion. Not enough to make a difference—or to make it worthwhile to introduce the measure into the next Congress. One veteran observer, surveying the scene, remarked that “the Evil party beat the Stupid party.”

Included in the ranks of the Stupid party are the pro-life leaders who would not recognize the “new thing” that had suddenly come upon them: The federal courts were cutting them off at the knees, striking down almost every law on partial birth abortion passed within the states—laying in the groundwork for striking down a federal bill if it were ever passed. The judges were also offering up the novel thesis that infanticide was no longer such a big deal: Infanticide could not be barred now if the attempt to bar it would inhibit an abortion. In an earlier day, a sentiment of that kind, emitted from the bench, was likely to be regarded as astounding—at the very least worthy of comment, and perhaps even a response. Yet the pro-life lobbyists would not make that response, or shift their strategy to deal with this new stage of the crisis.

Of course, in the fog that engulfed this recent election, none of these nuances might have been noticed and it might not have made the slightest difference to the outcome. Still, it had to be a bitter result for the pro-life leaders who had invested so heavily in the bill on partial birth abortions. They had established the ground for no further move, and their strategy brought them no yield—and no prospects. And then, of all things, matters became even worse: On the very day of the election, the federal court of appeals in the Seventh Circuit struck down the Wisconsin bill on partial birth abortions. Two days later, the comparable act in Kentucky was struck down, and a week later, the law passed in Arkansas was overturned. By this point, the box score had it that 18 laws had been struck down or blocked. The only law left standing was in Virginia. But with the precedents mounting, it seemed only a matter of time before the opinion of Judge Willig, in sustaining the law, would be challenged in a fuller panel of the court of appeals.

On the threshold of these disasters, with the calamities piling up, a key staffer in a congressional committee called to register her alarm—over me. She had caught up rather late with my recent column on the experience of Nick Nikas, defending the law on partial birth abortion in Arizona. She thought it quite wrong—and quite damaging—to report this part of Nick’s experience: Expert witnesses on our own side would be asked whether it was conceivable that a partial birth abortion could be safer than others. And they, honest men and women that they were, would concede that it was indeed conceivable. After all, there would be no hazards from induced labor, and there would be no fetal parts left behind to cause infection. My friend the staffer protested that this was not what we had heard from our medical experts: Even the American Medical Association had testified in Congress that, for every occasion in which partial birth abortion was used, another procedure of abortion would he even safer for the pregnant woman.

That may be, but it did not dislodge Nick Nikas’s report. In fact, Judge Richard Posner, in the Seventh Circuit, took note of that testimony from the AMA even as he moved to strike down the law on partial birth abortion in Wisconsin. To say that other methods of abortion are likely to be safer for the mother is not to dispose of the possibility that, under some circumstances, it is conceivable that the partial birth abortion could be safer for a certain woman. Conceivable, even if highly unlikely. The staffers who find themselves worked up over this matter seem to be losing the point: This is not a dispute over the medical evidence. The argument of the judges simply reflects the fact that the case is being argued within the framework and the premises of “the right to abortion.” Within that cast, as Posner was blunt enough to say, “there is no interest in fetal life.” The concerns for health and harm are entirely concerns for the pregnant woman. Any restriction on her freedom is seen, in this cast, as a restriction on the freedom of a woman to make decisions for her own health and life. Against that deep, ancient interest in “self-preservation,” the estimates of doctors do not count. Or they cannot displace the brute claim of her sovereignty in making judgments about the preservation of her own life and health.

The argument is condemned to be played out in this cast precisely because the bill on partial birth abortions never established the premise that the child is an entity, with any standing in the law. Posner may he gratuitously wounding, but he is arguing well within the logic of the current law when he observes that the bill on partial birth abortion “cannot save any fetuses—hut can merely shift [the locus of the killing] from the birth canal to the uterus. What interest has the state in such a shift?” What, indeed? It is one thing to seek to protect the child; it is quite another to bar one grisly method of killing while leaving in place the premise that the child has no claim to be protected.

When the new Congress assembles, there should be only one game left in town. It will have to be a version of the proposal advanced in these pages, to focus entirely on the child, detached from the interests of the mother. That may be a move to preserve the life of the child who survives the abortion, or it may be a version favored by Nick Nikas, which runs in this way: The right to abortion must end when the process of birthing begins; and if the law can bar infanticide, it must be able to protect the child at the point of birth. That proposal is not without its own points of ambiguity, where judges can find vagueness and mount a challenge. But the pro-life groups should not be hanging back, affecting any uncertainty of their own. To persist with the bill on partial birth abortions in the same way, in the same cast, as though nothing had happened, would be the mark of a political movement set on automatic pilot, with its mind now turned off.

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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