As pro-life Americans join in the annual March for Life and other events commemorating the infamous Roe v. Wade decision, they may wonder whether the Supreme Court’s long-awaited reversal of that decision in its Dobbs ruling of 2022 was the victory they had hoped for.

 

The backlash against the court’s new decision in our news media, politics, and culture, undoubtedly well-planned in advance by pro-abortion groups, was more vicious than many expected. News outlets reacted as though the court had banned all abortions nationwide, instead of sending this issue to the people and their elected representatives. Outrage, attacks on churches and pregnancy aid centers, attempts on the lives of Supreme Court justices – all this was followed by campaigns to replace, or surpass, Roe’s extreme policy with statutes or state constitutional amendments. A year after Dobbs, opinion polls showed increased support for legalized abortion -- and for calling the practice morally acceptable.[1]

 

The law is a teacher, and for half a century our highest court taught Americans that unrestricted abortion is a woman’s right. That message confirmed and aggravated a modern reductive view of the human person as a bundle of self-regarding wishes and aspirations, with no ties to others except those freely chosen to benefit oneself. This “expressive individualism” was openly endorsed in the court’s Planned Parenthood v. Casey decision of 1992: “At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”[2] (It seems unborn children are not persons because they can’t express New Age ideology.)

 

The court added that “for two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail.”[3] Now many people have relied on it for five decades. For them, the prospect of having to take responsibility for a child is an existential threat, an unwanted stranger’s attack on the ambitions that give them their sense of self. By that view of the person, resorting to outrage and even violence may even seem like self-defense.

 

Countering this culture of isolation and self-obsession may require years of reflection, education, and public witness, a topic beyond the scope of this article. Meanwhile, the immediate political situation may seem to have the pro-life movement on the ropes. But I think progress can be made.

 

Note that Americans’ views on abortion are not as extreme as one might think. Most still think there should be some protection for the unborn child, and their support for legalization falls after the first three months of pregnancy. Most Americans support modest laws like public funding restrictions and conscience clauses for health care providers with religious objections.[4]  

 

According to the pro-abortion Guttmacher Institute, 21 state policies are “most restrictive” (15) or “very restrictive” (6), while only 8 are “most protective” (2) or “very protective” (6).[5] (“Protective” here means protective of abortion, not of women or children.)  Guttmacher’s ideal “protective” policy is one that most Americans do not share: Unlimited “access” by adults and minors to abortion until the moment of birth, no protection for a child born alive during an abortion, mandated inclusion of abortion in public funding and private health plans, and so on.

 

Yet a number of states have passed public referenda supporting these extreme policies, even inserting them into state constitutions. There are several reasons for this. Pro-abortion groups generally far outspent their opponents. They announced that they were only (for example) “codifying Roe” – a blatant falsehood, as these policies turn abortion from Roe’s “private choice” into a virtually unlimited public entitlement. And they warned voters that the alternative would be a total or near-total ban promoted by those extreme pro-lifers.

 

But extremism is well ensconced in pro-abortion groups, a fact obscured by the stranglehold they seem to have on reporting by major news media. That movement’s flagship bill in Congress, mislabeled the “Women’s Health Protection Act,” would impose a nationwide ban on any law that restricts abortion at any stage or may limit or delay ready “access” to it. It even attacks regulations protecting the life and health of women undergoing abortions, by authorizing the U.S. attorney general and anyone (including an abortion provider) adversely affected by them to file suit. A safety regulation must fall unless supporters provide “clear and convincing evidence” that its goal cannot be served by a rule facilitating “access” to abortion. It seems one must first enact the “abortion friendly” regulation and watch women die before the regulation that may inconvenience abortion clinics is allowed.[6]

 

One question this raises is: Who really cares about women and their health? The pro-life movement has promoted literally thousands of pregnancy aid centers to help pregnant and parenting women and their children.[7] Religious charitable agencies have long served them as well, and years before Dobbs the Catholic bishops’ conference had established the “Walking With Moms in Need” program urging parishes nationwide to step up their efforts in this regard.[8] Pro-life organizations and leaders have united to call for improved state and federal assistance for parental leave, child tax credits, workplace fairness for pregnant employees, child support enforcement, and so on.[9]

 

On abortion itself, progress requires taking account of the views of voters and legislators in each state, and advancing so-called. “imperfect” legislation – or rather incremental legislation, as it is intended as a hopeful first step toward a broader culture of life. As Pope St. John Paul II has said, such legislation “does not in fact represent an illicit cooperation with an unjust law, but rather a legitimate and proper attempt to limit its evil aspects.”[10]

 

At the federal level, we currently have a hostile Administration, and a Congress so divided that nothing advanced by either side will be approved by both chambers. Even now, however, one can begin to advance the public debate by seeking a national “floor” of protection for unborn children that can be improved upon by individual states.

 

For example, in 2022, the “Pain Capable Unborn Child Protection Act” (H.R. 1080, S. 61) had 175 House sponsors and 46 Senate sponsors. It would forbid most abortions after 20 weeks following fertilization. Debate on a re-introduced bill could expose the rampant extremism of its opponents, in three ways.

 

First, 20 weeks after fertilization (22 weeks of what doctors call “gestational age,” counted from the onset of the woman’s last menstrual period) verges on the time of viability, when a child can be delivered and survive.[11] Those citing a right to “terminate a pregnancy” need to tell us why they insist the termination has to produce a dead child rather than a live one.

 

Second, abortion at this stage is a greater risk to the mother’s life than childbirth.[12] Do the bill’s opponents care about her life, or only about abortion for its own sake?

 

Third, when Roe v. Wade was issued, the American College of Obstetricians and Gynecologists defined an induced abortion as “the deliberate interruption of pregnancy by any means before the 20th completed week of gestation.” Pro-abortion groups are promoting interventions that, even decades before medical progress lowered the time of viability, were not medically seen as abortions but as the killing of premature infants.

 

As noted earlier, the far more profound challenge is a needed shift in our culture: From isolated individualism to vulnerability and interdependence, from unborn child as invading stranger to unborn child as one’s son or daughter, from “I” to “we.” Providing social, emotional, and economic support to women who may face an abortion decision will be part of the solution.

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[1] https://news.gallup.com/poll/1576/abortion.aspx.

[2] Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992) (emphasis added). The features of expressive individualism have been described by sociologist Robert Bellah and philosopher Charles Taylor. For its impact on abortion and other life issues see O. Carter Snead, What It Means to Be Human: The Case for the Body in Public Bioethics (Harvard University Press 2020).

[3] Id., 505 U.S. at 856 (emphasis added).

[4] See: note 1 above; https://www.kofc.org/en/resources/communications/polls/majority-americans-still-support-abortion-limits.pdf. 

[5] https://states.guttmacher.org/policies/.

[6] https://lozierinstitute.org/the-womens-health-protection-act-of-2023-attacking-the-health-and-freedom-of-women/.

[7] https://lozierinstitute.org/wp-content/uploads/2021/07/2020-Pregnancy-Centers-Fact-Sheet_FINAL-7.23.21.pdf.

[8] https://www.usccb.org/prolife/walking-moms-need.

[9] See https://lozierinstitute.org/fact-sheet-state-alternatives-to-abortion-funding/; https://eppc.org/wp-content/uploads/2022/09/Pro-Family-Policy-Statement-of-Principles-9.21.22.pdf; https://postroefuture.com/; https://www.usccb.org/resources/USCCB%20Letter%20and%20Policy%20Recommendations%20Supporting%20Women%20and%20Families%20-%20Oct%202022_0.pdf.

[10] John Paul II, Evangelium vitae (The Gospel of Life) (1995), no. 73, https://www.vatican.va/content/john-paul-ii/en/encyclicals/documents/hf_jp-ii_enc_25031995_evangelium-vitae.html.

[11] https://lozierinstitute.org/fact-sheet-science-of-fetal-pain/.

[12] J. Epner et al., “Late-term Abortion,” 280.8 JAMA 724-9 (Aug. 26, 1998) at 727; J. Thorp and W. Bowes, “Prolife Perinatologist – Paradox or Possibility?”, 326.18 NEJM 1217-9 (April 30, 1992) at 1218;  P. Marmion and I. Skop, “Induced Abortion and the Increased Risk of Maternal Mortality,”  87.3 The Linacre Quarterly 302-10 (August 2020) at 302 (“In the United States, the death rate from legal induced abortion performed at 18 weeks gestation is more than double that observed for women experiencing vaginal delivery”), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7350112/pdf/10.1177_0024363920922687.pdf .

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