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Life in Post-Roe America

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Note: This article was written in early 2005 before Chief Justice William Rehnquist and Sandra Day O'Connor left the Supreme Court and were replaced by Chief Justice John Roberts and Judge Samuel Alito.

Current political events beginning with the re-election of President George W. Bush have brought back into the public debate a serious discussion about the future of abortion on demand. The recent furor in conservative circles regarding the chairmanship of Senator Arlen Specter over the Senate Judiciary Committee and the serious decline in the health of Chief Justice William Rehnquist have stimulated public dialogue regarding the future make-up of the Supreme Court and a potential reversal of Roe v. Wade .

The original decision in Roe indicates that the high court did not intend its scope to encompass the blocking of abortion restrictions in the manner that has occurred since 1973. The structure of the decision, which allows for more abortion prohibitions as a pregnancy progresses into its second and third trimesters, supports this assessment. Indeed, Chief Justice Burger was adamant in his concurring opinion that the decision did not launch abortion on demand as the law of the land. However, under the guidance of Roe , the federal judiciary has subsequently blocked implementation of laws requiring the consent of parents to an abortion performed upon their minor child. The high court has further blocked a requirement of the consent of a spouse before an abortion procedure is performed on his unborn child. And the judiciary has thrown out attempts to require that women receive basic information about fetal development and the abortion procedure itself before obtaining an abortion.

Conservatives cheered two years ago when President Bush signed into law the ban on a late-term abortion procedure known as "partial-birth abortion." Nearly two-thirds of the House and Senate approved this ban, and public opinion polls show that nearly 70 per cent of the public is opposed to this abortion procedure. Yet, one federal judge, relying on the precedent of Roe , has enjoined implementation of this law. While both opponents and supporters of legal abortion agree that this grisly procedure goes far beyond the pale of human decency and should be prohibited, radical abortion rights leaders argue that a ban on partial-birth abortion must be opposed because it is the first step in the legal erosion of the right to abortion enunciated by Roe v. Wade .

The current make-up of the United States Supreme Court makes it highly unlikely that a reversal of Roe is on the immediate horizon. Only three justices (William Rehnquist, Antonin Scalia, and Clarence Thomas) are anti- Roe and would vote to overturn it. Two other justices, Anthony Kennedy and Sandra Day O'Connor, are supporters of minimal abortion restrictions but are on record as supporters of Roe's premise that there exists a constitutional right of privacy which is broad enough to encompass a woman's right to choose whether to terminate a pregnancy. Clearly a change in the high court is necessary before there can be a realistic possibility of Roe's being overturned.

In the likely event that the Chief Justice retires soon due to his health, a new justice who is like-minded with Rehnquist must replace him. The retirement of two more pro- Roe justices and their replacement by two anti- Roe justices must follow for a reversal to occur. The most likely justices to step down in this scenario are John Paul Stevens, age 84, and Sandra Day O'Connor. While some political pundits are surmising that this will occur, nothing is certain when it comes to political predictions about the make-up of the Supreme Court.

Regardless, the re-election of President Bush has sent the Left into hysteria as they now proclaim that abortion on demand may be ended in the next few years with a few Bush appointments to the Supreme Court. Indeed, the likelihood of the President's making three or more appointments to the high court is within the realm of reasonable possibilities. However, while Roe may be in serious jeopardy, its demise does not mean an end to abortion in America in the near future. The cultural war and debate over the legality of abortion on demand will continue at all levels of government and throughout society whether or not Roe remains as a constitutional precedent.

Let us assume that the day eventually comes when Roe takes its place with other discarded and misguided court decisions, such as the Dred Scott case, which denied the rights of citizenship to former black slaves. Under such a ruling, legal abortion will continue for the foreseeable future because this will not ban abortion. Rather, by stating that the right to abortion is not a right secured by the Constitution, such a ruling will place the determination of the legal status of abortion on demand to the fifty individual states. Undoubtedly, some states in this environment will prohibit abortion while others will continue to allow it with restrictions. Still others will permit unrestricted access to abortion.

At this time seventeen states fund abortion with state tax dollars. Of these, four (Hawaii, Maryland, New York, and Washington) voluntarily pay for abortions under edict of state law. Thirteen more (Alaska, Arizona, California, Connecticut, Illinois, Massachusetts, Minnesota, Montana, New Jersey, New Mexico, Oregon, Vermont, and West Virginia) are under court order to fund abortion on the same terms as other pregnancy-related and general health services. It is highly unlikely that these states would, in the event of a reversal of Roe , change from a public policy of funding abortion to banning it. Statistics from the Centers for Disease Control and Prevention indicate that 54 per cent of the estimated 1.3 million annual abortions occur in these seventeen states. In New York and California alone, more than one-third of the total annual abortions take place. Assuming that some women would travel from states where abortion was illegal to states where it remained legal, it would be reasonable to predict one million legal abortions annually in the immediate aftermath of a Roe reversal.

Roe's demise does not end abortion. Rather, it shifts the battle for the sanctity of human life to the state and local levels. If we are serious about ending the tragedy of abortion, then we must build a culture of life in every community in America. This requires that local communities view abortion, even though legal, as not only unnecessary but harmful overall. A culture of life means that we welcome into the human family every life. The lives of the weak and the strong, the old and the young, the healthy and the infirm, the born and the unborn all have value and should be treated with dignity in a society founded on the belief that all are created equal and endowed by their Creator with certain inalienable rights, among these, life.

The starting place for state and local leaders to begin this task is to support the work of the pro-life pregnancy help centers in their communities. These centers have existed for years in every locality across the nation, providing counsel, material assistance, support, and alternatives to abortion to women in crisis pregnancies. Currently there are approximately 2,500 such centers, and that number is growing annually. Many are now offering valuable medical services, such as pregnancy diagnosis and STD testing. Included among such services is a confirmation of pregnancy via an ultrasound examination by which a woman can view her unborn child in utero. Statistics indicate that 90 per cent of a center's abortion-minded clients who see their unborn children through ultrasound exams choose to carry their pregnancies to term. Supporting and funding these centers provides localities an opportunity to create a culture of life in which unborn life is valued and abortion is unnecessary and rare.

The greatness of contemporary America will not be measured by its economic power or its military might. Rather, future historians will judge today's America by how we treat the most vulnerable of our fellow human beings. Today, where one out of every four pregnancies ends in abortion, the unborn are clearly the most vulnerable among us.

Those who want to affirm the dignity of life—both born and unborn—have a tremendous challenge ahead. A post- Roe America will intensify this challenge. I believe that the people who passionately believe in the right to life are up to this task and ultimately will be successful.

Upon hearing the news of a major strategic victory during World War II, Winston Churchill remarked, "This is not the end. It is not the beginning of the end. But perhaps it is the end of the beginning." A reversal of Roe v. Wade will not immediately end abortion on demand, but it will perhaps be the end of the beginning of this dramatic cultural debate over the value of human life. It will certainly usher in a new era in which communities across the nation may unite to support life-affirming options for problem pregnancies and build community acceptance and support for the most vulnerable of our human family.

Thomas A. Glessner, J.D., is the president of National Institute of Family and Life Advocates (NIFLA) and can be contacted at [email protected]  or at their website www.nifla.org

Copyright © 2005 Focus on the Family All rights reserved. International copyright secured.

 
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