Inside this issue...

• Introduction

• Dark Times, Sleeping Giants, Women in Peril: Favorite Tales from Abortion Mythology

• What is Roe?

• Distressing Sounds from CAW

This situation, with its lights and shadows, ought to make us all fully aware that we are facing an enormous and dramatic clash between good and evil, death and life, the "culture of death" and the "culture of life." We find ourselves not only "faced with" but necessarily "in the midst of" this conflict: we are all involved and we all share in it, with the inescapable responsibility of choosing to be unconditionally pro-life (The Gospel of Life, 28).

In our country, recent "lights" include opinion surveys affirming that a sizeable majority of Americans is opposed to abortion, as well as two very significant pro-life bills that Congress is poised to enact and President Bush is expected to sign.

These examples of success — winning hearts and minds for the pro-life cause, resulting in better policies to defend life — are the fruits of persistence in prayer, education, and advocacy. But there are shadows still.

One prominent such shadow is the current approach of the U.S. Supreme Court. In June 2000, five Justices took the logic of Roe v. Wade as far as it could go in the context of abortion, ruling that Roe's privacy right encompasses killing a child during birth using the partial-birth abortion procedure.

For three decades, legal scholars have criticized the Court's creation of a privacy right/liberty interest in Roe which is nowhere found in the text or history of the U. S. Constitution. Far from correcting its error, the Court in June 2003 expanded the notion of a constitutional right to privacy to include acts of homosexual sodomy. By extension, the court's decisions in Lawrence v. Texas has made it more difficult to maintain restrictions on any non-public consensual behavior related to sex and raised new questions about laws recognizing the institution of marriage.

Such events underscore the importance of public officials who are committed to building a culture in which all human life is valued and protected. It is not enough to be pro-life; each of us must carry his or her convictions into the public square and into the voting booth. As the U. S. bishops remind us: "We get the public officials we deserve. Their virtue — or lack thereof — is a judgment not only on them, but on us" (Living the Gospel of Life, 34).

Turning now to a fuller discussion of particular lights and shadows —

Dark Times, Sleeping Giants, Women in Peril: Favorite Tales from Abortion Mythology

One informal measure of pro-life success is the level of hysteria and hyperbole in the abortion lobby's fundraising letters. A recent plea from NARAL Pro-Choice America ("NARAL") begins: "It's a dark time for women's rights." NARAL explains the need for emergency contributions to fight the proposed ban on partial-birth abortion — called the "latest blow in Bush's war on women" — and to "awaken the sleeping giant that is pro-choice America."

Sleeping giant? If "pro-choice America" means people who support the current law — any abortion method, at any time, for any reason — it represents barely 23% of the public (Gallup analysis, June 2003). An additional 15% of the public would place greater restrictions on abortions, while keeping most legal.

Gallup's study of abortion attitudes reveals that a large and steadily growing majority of Americans are opposed to virtually all the abortions permitted under Roe v. Wade. Almost 1 in 5 Americans want abortion illegal in all circumstances (19%), and another 42% would forbid abortion except in the narrowest circumstances — typically where the mother's life is endangered or in cases of rape or incest, amounting to less than 3% of abortions each year. Taken together, 61% of the public opposes all but a small fraction of the abortions that are done today. By a margin of 61 to 38, Americans — if they had the political power to do so — would outlaw over 97% of abortions. Regrettably, the Court in Roe took that power from the states and from the American people, substituting the personal policy wishes of a few judges for the laws enacted by 50 state legislatures.

Why then are we constantly told that "most Americans are pro-choice"?

There are two main reasons: first, the common pro-choice/pro-life dichotomy is a very flawed barometer of opinion on the legality of abortion; and second, polling questions are often skewed, intentionally or not, to elicit a greater "pro-choice" response.

Polls rarely, if ever, define the terms "pro-choice" and "pro-life." They allow respondents to identify themselves as belonging to one or the other category. People who are opposed to almost all abortions, but who would allow a woman to abort in the case of endangerment to her life or rape, for example, may call themselves "pro-choice" because they would allow some abortion. Also, the hostility of the mainstream press and abortion advocates to the pro-life movement, and the violent tactics of a handful of abortion opponents, have stigmatized the pro-life movement in the eyes of many people. Therefore, many who would like to see an end to abortion nevertheless shy away from the pro-life label.

There is solid evidence of support for greater restrictions on abortion among those who call themselves "pro-choice". Gallup's 2002 "In-Depth Review" of public opinion about abortion tested opinions on the legality of abortion among those who identified themselves as pro-choice or pro-life. Note that since 1998, Americans have selected between the two labels at almost equal rates. In August 2001, 46% chose each position, but the pro-choice label was slightly favored before and since. Within each camp, however, there are huge differences on the issue of legality.

Views on legality among those who say they're "pro-life" (2002) Never legal - 31%
Legal in only a few cases - 59%
Legal in most cases - 5%
Legal in all cases - 4%

Views on legality among those who say they're "pro-choice" (2002)

Never legal - 3%
Legal in only a few cases - 27%
Legal in most cases - 19%
Legal in all cases - 50%

So 30% of self-identified "pro-choice" people would ban all or almost all abortions; only 9% of self-identified "pro-life" people would oddly permit abortion in most or all cases. The latest Gallup poll (May 2003) shows 48% of Americans identifying themselves as pro-choice and 45% as pro-life. Let's readjust the columns to reflect their attitudes on the legality of abortion.

If the 30% of "pro-choice" respondents who oppose all/almost all abortions are shifted to the pro-life side (.30 x 48% =14% of total respondents), and the 9% of pro-lifers who favor keeping all/almost all abortions legal are shifted to the pro-choice column (.09 x 45% = 4% of total respondents), a truer picture emerges:

Pro-life 45% (-4% + 14%) = 55%
Pro-choice 48% (-14% + 4%) = 38%.

That's a 17-point pro-life advantage in 2002 in favor of making almost all abortions illegal.

What is Roe?

Most abortion polls ask only one or two questions. They often only refer to Roe v. Wade or to a shorthand description of abortion law. Many polling questions identify Roe as, for example, the case that "makes abortion legal in the first three months." A polling question that misleads the respondent into thinking abortion is illegal after 3 months creates a big 63% to 29% advantage for Roe. Despite decades of pro-life education, polls show continued ignorance of Roe's breadth. Abortion advocates, who are seen on TV far more often than their pro-life counterparts, continue to assert – without challenge – that dozens of states ban late-term abortion, as former NOW president Patricia Ireland recently told "The O'Reilly Factor."

Distressing Sounds From CAW

The 2003 Gallup polling and analysis are not alone in documenting a large and growing pro-life trend. The pro-abortion Center for the Advancement of Women ("CAW"), formerly known as the Center for Gender Equality, commissioned Princeton Survey Research Associates to study the views of over 3,300 women on a variety of issues of concern to women. CAW President Faye Wattleton (a former president of Planned Parenthood), summarizes the "alarming" findings:

There is alarming news. We are losing ground on many hard-won victories for women's rights, which could ambush the status that women have achieved. ...

Preserving reproductive rights, core to every woman's liberty, is far down on the list of women's priorities.

There is significant and growing support for severe restrictions on abortion rights. ... In spite of these warning signs, few women are joining organizations or making financial contributions to women's rights groups. A key finding of this survey:
"51% [of women] say abortion should be available only in cases of rape, incest, or if the life of the woman is endangered, or not at all."

Consistent with the shift toward pro-life attitudes, women now rank "keeping abortion legal" 11th out of 12 "priority issues," just ahead of "increasing the number of girls who participate in organized sports." The top three priorities women identified were reducing domestic violence and sexual assault, equal pay for equal work, and child care.

As seen in Ms. Wattleton's remarks, the abortion industry — and organizations allied with and supporting the industry (e.g., NARAL and NOW) — are perplexed and exasperated by American women's refusal to accept abortion as "no big deal," by their refusal to recognize that the unborn child is, as they claim, a nonentity. And because lies are always at risk of being defeated by the truth (even when they are protected by the most powerful court in the U.S.), the industry and its friends are ever vigilant to suppress the truth about nascent human life in whatever context it arises. Every event, every policy that concerns a child before birth or near birth must be minutely scrutinized for its potential to "undermine Roe v. Wade." And anything that threatens the shaky "constitutionality" of Roe must be stopped dead.

This is one reason it has been difficult to enact even common sense legislation relating to unborn children despite strong public support for such measures. For example, criminal laws in two dozen states currently punish the intentional or negligent killing or injuring of unborn children, except in the course of an abortion. The House passed a similar federal bill, the Unborn Victims of Violence Act (UVVA) in 1999 and again in 2001, to cover acts occurring on federal property or in the commission of a federal crime (the bombing of a federal building, for example). But the Senate never took up the measure.

Although the recent deaths of Laci Peterson and her unborn son Conner would not fall under the proposed federal law because they involve a state homicide law, the double-murder prosecution of Scott Peterson caused consternation among abortion lobbyists. California law defines murder as "the unlawful killing of a human being, or a fetus, with malice afore-thought." This legal recognition of Conner as a human being was felt to be unacceptable. A state chapter president of NOW revealed the thoughts of many others (who wisely remained silent): If you begin to treat late-term fetuses like human beings (rather than amorphous "potential" somethings or, better yet, nothings), who knows where it could lead? People might begin to make a mental connection with late-term abortion. Better to pretend that Conner never existed, and let his death go unpunished, than to jeopardize the "right" to late-term abortion.

For NARAL, UVVA is not about an attack on a pregnant woman and her child. It's all about an attack on Roe. A fundraising letter describes the bill this way: "[Legislation] that threatens a woman's right to choose is already moving through Congress. ... [The] Unborn Victims of Violence Act is at the top of the agenda and is designed to chip away at the constitutional rights of women."

Now, after four years of legislative effort, the publicity surrounding the deaths of Laci and Conner has given new impetus to UVVA. Laci's mother, Sharon Rocha, has become an energetic and eloquent advocate for both federal and state measures, greatly boosting the likelihood of passage. She even asked for the federal bill to be renamed "Laci and Conner's Law" to honor both their lives. As of this writing, a House Judiciary subcommittee has again approved the bill, and the Senate may begin consideration before the August recess.

Eight years of congressional efforts to ban partial-birth abortion are also close to success. Bans on partial-birth abortion passed Congress twice, with Senate majorities just shy of overriding President Clinton's vetoes. The abortion lobby relied on President Clinton to prevent enactment of a partial-birth abortion ban but he no longer resides in the White House. And in the last Congress, only the obstructionism of the Senate's then-Majority Leader kept the bill from Senate consideration and passage. This spring, an improved bill to ban partial-birth abortion sailed through the Senate and House. A joint conference committee is soon to be appointed to resolve the one difference between the bills, and send the ban to the desk of a President who is eager to sign it. A judicial appeal will probably be filed within hours of enactment.

Earlier issues of Life Insight discussed improvements to the original bill now incorporated in the Partial-Birth Abortion Ban Act of 2003 — defining the procedure precisely, and demonstrating why a "health" exception is not required by Supreme Court precedent. We've not, however, discussed the Senate's amendment (offered by Sen. Tom Harkin): a "sense of the Senate" affirmation of Roe v. Wade. Although it has no legal effect and is expected to be deleted from the final bill, the Harkin amendment accomplishes two things for abortion supporters. It postpones the eventual enactment of the law, while each chamber selects members to serve on the joint conference committee that must resolve the differences in the bills. The affirmation of Roe also gives "moderates" an opportunity to placate the abortion lobby, while currying favor with pro-life constituents through their vote to ban partial-birth abortion.

The Harkin amendment, which passed 52-46, states that the Roe decision was "appropriate," "secures an important constitutional right" and "should not be overturned." What's really noteworthy about the vote is the situation of 17 senators who voted in favor of affirming Roe v. Wade and also voted for the overall bill to ban partial-birth abortion. What's odd about that? One could oppose near-infanticide abortions and still support Roe, right? No, not according to the Supreme Court's 2000 decision.

In striking down the Nebraska ban on partial-birth abortion in Stenberg v. Carhart, the Supreme Court declared that the terms of Roe (at least those that survived the 1992 Planned Parenthood v. Casey decision) apply to partial-birth abortion. Accordingly, the Court stated that partial-birth abortion cannot be banned before the child reaches "viability," or even after viability without the usual, eviscerating "health" exception. After June 2000, approving of Roe means endorsing a "right" to partial-birth abortion — or it means sharply disagreeing with the Supreme Court on what Roe means.

Some of the 17 senators who affirmed Roe while voting for a partial-birth abortion ban have vigorously opposed, and even helped filibuster, efforts to confirm highly qualified judicial nominees. Their main, if not sole, ground for hostility toward certain nominees is the nominee's opposition to Roe v. Wade. It's enough for a nominee to be suspected of not supporting Roe, or of not supporting it strongly enough, for him or her to be called unfit to serve. The absence of corroborating evidence is immaterial. Now that these 17 are on record as themselves opposing (the current Supreme Court's version of) Roe, by having voted to ban partial-birth abortion, it will be interesting to observe their attempts to explain why they themselves are "fit to serve" and the nominees are not. These senators, of course, pose no serious threat to abortion rights, unlike justices who take seriously their oath to uphold the Constitution.