American Enterprise Online | 3.6.06
By Alan Dowd 

After decades of glacial change in the courts, see-saw successes and failures in the legislatures and piecemeal advances at the grassroots, the work of pro-life Americans is beginning to bear fruit.  

The US Supreme Court recently concluded, in a unanimous decision, that pro-life demonstrators are not guilty of racketeering or extortion simply because they gather to protest abortion. Instead, they are guilty of nothing more than committing freedom of speech.  

That same Court agreed to determine the constitutionality of a federal law ending the gruesome procedure known as partial-birth abortion. That law was overwhelmingly endorsed by Congress, signed by the president, but then struck down by a lower court. With two new justices representing a net “plus-one” for the pro-life side—all the evidence points to the likelihood that Roberts shares Rehnquist’s distaste for Roe, while Roe-defender O’Connor was replaced by Roe-opponent Alito—the odds are good that the freshly reconfigured Supreme Court will reverse the lower court’s ruling and open the door to new limitations on abortion. These, of course, would then be challenged and ultimately reviewed by the Court, which could fuel a cycle of policies and decisions that expand respect for life in the public square.    

One could argue that this cycle is already in motion. Two weeks ago, for example, in what some termed “a deliberate frontal assault on Roe v. Wade,” South Dakota lawmakers approved a bipartisan ban on most abortions. The act is anything but ceremonial: Under the measure, a doctor who performs an illegal abortion could be jailed for up to five years. 

In Mississippi, a similar bill has worked its way to the House floor and could come up for a vote by this week or next. 

In the latest example of “informed consent” measures that chip away at Roe by appealing to common sense, Indiana is ready to pass a bill (with a reservoir of bipartisan support) that requires providers to notify women seeking an abortion about a range of facts and available resources, including: adoption alternatives, the health risks of abortion, the potential survival of an unborn fetus at different stages of development, the availability of fetal-ultrasound imaging, the availability of medical assistance benefits for childbirth and neonatal care, and the father’s legal obligation to assist in the support of the child. 

In short, there is newfound momentum and movement toward life. 

Contrary to the abortion lobby, laws and decisions that have the effect of limiting Roe’s reach are not “out of the mainstream,” to borrow a favorite phrase of Kate Michelman (former head of the National Abortion Rights Action League). In 2001, for instance, Gallup found that 46 percent of Americans supported the status quo on abortion. The rest supported changes that would limit abortion in some manner. Today, more than 60 percent of the nation supports stricter limits on abortion or outlawing abortion altogether, according to a New York Times poll. In fact, as an ABC/Washington Post survey revealed in December 2005, a scant 17 percent of the country accepts what the abortion lobby advocates—abortion with no limits or restrictions of any kind. 

In other words, it is NARAL and the rest of the abortion lobby that finds itself out of the mainstream, as a generation of incremental changes begins to yield a Roe-reversing majority. Some of the people who comprise this majority may not be comfortable with being called “pro-life.” But whatever they call themselves, they are certainly not “pro-Roe” or “pro-choice”—at least not in the sense that NARAL and the rest of the abortion lobby misuse the term.  

Given NARAL’s need to identify with the mainstream, it’s ironic that their defense of abortion in all its forms has pulled America out of the mainstream in relation to the rest of the world. As Justice Antonin Scalia noted at a recent AEI gathering, what sets us apart from the global mainstream when it comes to abortion has been our grisly willingness to tolerate it without any limits at all.  

“According to the United Nations,” Scalia observed, “the United States is now one of only 53 countries classified as allowing abortion on demand, versus 139 countries allowing it only under particular circumstances or not at all. Among those countries the UN classified in 2001 as not allowing abortion on demand were the United Kingdom, Finland, Iceland, India, Ireland, Japan, Luxembourg, Mexico, New Zealand, Portugal, Spain, Switzerland, and virtually all of South America.” 

Perhaps some future UN report will find the United States has nudged its way back into the mainstream. Perhaps one day America will even lead the world in charting that last and first frontier of human rights—the right to life.