Wednesday, April 20, 2011

Winning on the Edges [Jay]

Two new articles by Dahlia Lithwick at The Slate and Sarah Kliff at Politico draw attention to the recent trend of state legislators passing bills that challenge aspects of Roe v. Wade without making a direct attempt to overturn that dreadful piece of judicial reasoning. What is interesting to me is how both articles recognize that losing the Gonzales v. Carhart decision has changed the playing field for the pro-abortion side.

Because some still insist that Carhart was somehow a pro-choice victory and that recognizing it as an advancement for the pro-life cause demonstrates that you are not really pro-life, it is helpful to look at what is happening. The pro-aborts LOST on Carhart and they know that. They are afraid of LOSING again and so they will not challenge these incremental moves all over the country for fear that it will lead to another judicial LOSS.

From Kliff's article:

_Oklahoma is likely to be the next state to ban abortions after 20 weeks, on the basis that the fetus can then feel pain, with Gov. Mary Fallin expected to sign a law imminently. Idaho and Kansas passed similar “fetal pain” laws last week. Nebraska’s law has been on the books for a year, and legislators in 14 states have introduced similar measures, according to the Guttmacher Institute, with bills in Alabama, Iowa and Indiana moving forward at a rapid clip...

It could lay the groundwork for the next challenge to Roe v. Wade — a battle they believe they can win.

And although Nancy Northrup, President of The Center for Reproductive Rights, claims that they are not challenging because they see the new restrictions as lower down on their list of prioritites, this seems like empty bravado. They acknowledge that these new laws will restrict the access for some women to abortion and that the laws challenge particular aspects of Roe/Doe, and yet the Nebraska law has been on the books for a year and has gone unchallenged. Does The Center for Reproductive Rights not care that a small percentage of women are being denied their Constitituonal right to choose abortion? Are they really unconcerned that some women have lost their reproductive rights? How is that possible? It is the name of their organization for goodness sakes!

Perhaps they have other motivations for ducking this fight. Again, from Kliff's article:

-Abortion rights supporters also have reason to approach the Supreme Court with caution: The last abortion challenge to rise to the Supreme Court ultimately restricted abortion access. Carhart v. Gonzalez (2007) upheld the national Partial-Birth Abortion Ban Act, passed by Congress in 2003 which bars providers from using a late-term procedure called “dilation and extraction..."

Reproductive health groups widely disagree with this reading of Gonzalez, contending that the court will uphold the viability standard it has used for decades. Nevertheless, NWLC’s Borchelt concedes that it did “open the floodgates” for anti-abortion groups to test out new, more restrictive bans, with hopes of bringing one to the high court...

Equally alarming to abortion rights supporters: Gonzalez was written by crucial swing-voter Kennedy, who had previously supported abortion rights in other cases, like 1992’s Planned Parenthood v. Casey.

“We would hope Justice Kennedy would stay with his position in Planned Parenthood,” Northrup said. “That being said, we lost the case in [Gonzalez] and would join Justice [Ruth Bader] Ginsburg in saying we’re ‘alarmed’ at the view of women that was reflected in that decision.”

Maybe Kliff is just exagerrating. Lithwick is an unapologetic defender of abortion as a constitutional right, so surely she will balance this take with some pro-choice optimism. From Lithwick:

-Opponents and supporters of abortion appear to have taken the position that Roe v. Wade is no longer the law of the land.-

Maybe not. Later in the article:

-The risk of challenging these clearly unconstitutional laws and then losing at the Supreme Court is evidently so high, according to Terry O'Neill, president of the National Organization for Women, that it's not worth taking. As she explained last week to Rachel Maddow, the fear that Justice Samuel Alito would vote to overturn Roe is so deep that reproductive rights groups may be opting to leave the state bans in place. And, as she conceded in that interview, wherever unconstitutional state abortion bans go unchallenged, they become law.-

Lithwick quotes an article in San Diego City Beat by D.A. Kodolenko. In the article he says:

-This is a dangerous Catch-22. In order to keep in place the existing federal law protecting a woman’s right to choose, pro-choice organizations are limited in what they can do about the spate of new anti-abortion laws being passed in states dominated by anti-choice conservatives.

What we’re witnessing is a stealth campaign to make an abortion illegal or as difficult to obtain as possible in as many states as possible, and it’s working.

I am grateful to every pro-lifer that reminds us all that the ultimate and only true goal is the end of abortion. It is also helpful to remind ourselves that small steps legitimately get us to our destination, though not as fast as any of us would like. No pro-lifer will ever be truly happy until we live in a culture that recognizes the value of all human life and sees it as virtuous to protect those least capable of protecting themselves even when it requires that we sacrifice in order to do so. Even so, we ought to be able to enjoy moments of progress.

If the other side can be believed, we are making progress. We can press on knowing that we are making a difference.


  1. It's frustrating that some pro-lifers don't understand the difference between compromising on principal and compromising in politics. It is foolish to try and win battles that are not winnable - hoping Obama won't veto a bill that defunds Planned Parenthood, for example.

    In fact wisdom dictates that we should use those resources instead on things that will actually help us win the war: the total protection of preborn children.

    I guess it goes back to fruit: what's happened with all those personhood amendments? Nothing. Whereas this is showing that we're saving lives now and building a case for saving more lives in the future.

  2. >>Because some still insist that Carhart was somehow a pro-choice victory

    Really? i haven't heard anybody say that. i may have missed it.

    The claim, as i understand it, is that the Partial Birth Abortion Ban wouldn't save a single baby. As a law, this claim is obviously true. Other methods of baby murder are still available.

    Not-saving-a-single-baby hardly sounds like a pro-life victory. Yet, at the same time, it's not a pro-abortion victory either.

    The debate over the PBA ban was itself a pro-life victory. Anytime, the brutality of abortion and the humanity of the primary victim are brought into focus, it's a winner for the pro-life movement.

  3. >>what's happened with all those personhood amendments? Nothing.

    Well William, it's 1803 and you've been working hard for 22 years.

    What's happened with all those attempts to outlaw the slave trade? Nothing.

    Jojo, you may want to reconsider such statements.

  4. Jojo, let me tell you what happens with personhood amendments.

    Personhood amendments give us a prime opportunity to make the case that human rights begin when an individual human being begins her life.

    Did that case get made with the PBA ban? Does that case get made with a ban on abortion after 20 weeks? How about with a waiting period? Parental notification?

    I'm not attacking these abortion regulations in any way, i'm just making the obvious point that they don't teach truth, they don't teach principle. If you want to teach truth, you have to propose laws that uphold truth.

    Is it "foolish" to fight for human rights, even when you know you're going to lose in the short-term (as Wilberforce did)? Is it "foolish" to use our resources to make the case that all human beings should be protected under law?

    i suggest, Jojo that you take a different course. Pro-lifers who want to limit abortion through regulation should go ahead. Personhooders should support such efforts or at least offer no public opposition (keep the debate inhouse). Personhooders should push for a complete and immediate ban on abortion and regulators should support such efforts or at least offer no public opposition (keep the debate inhouse).

    Bad mouthing each others' efforts gets us what, Jojo? "Nothing", perhaps.

  5. Um, Drew, you just made Jo Jo's point. Unlike many in the personhood ranks, Wilberforce worked incrementally to achieve his goal. Besides, Jay presented evidence we are making progress with the state by state abortion control legislation (the only the courts allow at this point) and you have done nothing to refute that evidence. At the same time, The human life Amendment was tried and failed, and it was everything the personhood folks wanted. Thus, you have limited evidence that your approach is the way to go. You have work to do, my friend!

  6. >>Um, Drew, you just made Jo Jo's point.

    No. i didn't. i just showed that the fact that Personhood hasn't yet achieved it's goal, just as Wilberforce hadn't yet achieved his, tell us... as Jojo might put it... Nothing.

    i was refuting one of Jojo's arguments, not making a general statement.

    >>Wilberforce worked incrementally to achieve his goal.

    Of course, going after the slave trade was an extremely important step in getting rid of slavery. It was truly an "incremental" step.

    In the case of abortion though, what we call "incremental steps" aren't really incremental. The PBA ban didn't get us closer to banning abortion. Parental notification and waiting periods don't get us closer. Even a ban on 20 week abortions doesn't get us closer. They're regulatory not incremental. The purpose of these laws is to save some lives here and there. i believe this purpose justifies instituting such regulatory measures.

    By the way, Scott, i heard you speak in Massachusetts back in 2002. It was the first time i'd ever heard the pro-life position put in such a concise, coherent, structured argument. If we could get everyone to sit through that class, abortion would end in America. Thanks for going to Massachusetts that day.

  7. Drew, Meanwhile, your point about the PBA debate educating the public is excellent. I would add only this: As Hadley Arkes, Ed Whelan, and others have pointed out, the Carhart decision helped legally as well. First, it rejected the commonly used facial challenge that abortion-choicers love to throw at all pro-life laws. The Court disallowed that, and thus sets in place better rules for evaluating pro-life legislation. Second, it put in place a premise that the child in the womb was a real thing who could be harmed by PBA. Thus, while I agree with you that this is hardly a game-over victory, it's hardly a loss nor is it neutral. It's a baby step win (no pun intended).

  8. >>Jay presented evidence we are making progress with the state by state abortion control legislation

    i'm sorry but i don't think Jay presented any such evidence. Sure, pro-lifers are getting more and more abortion restrictions in place but how does that get us to a recognition that human rights belong to human beings at the beginning of life?

    Some Personhooders believe that these restrictions are even counter-productive. They (Bob Enyart being prime among them) say that such restrictions simply make the killings seem less repulsive and therefore less likely to be banned.

    i believe the anti-regulation folks are wrong because deep down all of us know that abortion is murder. Abortion regulations can't get rid of this underlying reality. It nags at everyone, even as they work hard to deny it.

  9. >>Thus, you have limited evidence that your approach is the way to go.

    Ultimately, Personhood amendments are the way to go. i think we all agree that this is the ultimate goal.

    But we're never going to get there unless we have the public behind us. We have to change public opinion. This means converting millions of individuals to the pro-life position. Scott, your ministry is dedicated to exactly that -- teaching that human rights belong to the tiniest human beings.

    So, the question is: How do we get the public converted to pro-life position?

    " shall they believe in [human rights for embryos if] they have not heard? and how shall they hear without a preacher?"

    Personhood Amendments give us a platform on which to preach. We should welcome and embrace these opportunities.

  10. i'd really like to know where my argument fails. Why is Personhood now a bad strategy?


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