For Americans who want to limit abortion on demand, a window of opportunity now stands open in Congress. Whether pro-life legislators seize this opportunity will depend on whether they prefer symbolic victory or substantive reform.
Two years ago Congress’s newly elected pro-life majority proposed the smallest of incremental restrictions on abortion, triggering a remarkable series of events. Scarcely a year after President Clinton vetoed a law banning the procedure known as partial-birth abortion, pro-choice Democrats in the Senate, most notably Minority Leader Tom Daschle (D., S.D.) have authored legislation that would ban most late-term abortions, whether performed by the partial-birth procedure or not.
Now, facing a sure veto of another Republican-authored partial-birth ban, pro-life leaders appear diffident about a concession they scarcely could have imagined a year ago. Of course, they have their reasons. Because Sen. Daschle’s proposal presupposes the legal framework of the Supreme Court’s 1973 Roe v. Wade decision, many pro-life leaders fear its enactment would prevent any further legislative restrictions on abortion. Indeed, many pro- choice leaders have supported Mr. Daschle’s proposal for the same reason.
Both sides have misjudged the situation. Far from preventing further reform, the Daschle proposal would establish a political principle making future reform possible. And properly amended, the Daschle bill may prove a more effective limitation on abortion than the partial- birth abortion ban. Republican leaders should therefore cooperate with Sen. Daschle to revive his ban on postviability abortions. They should then prepare to press their advantage with further incremental legislation.
Mr. Daschle’s proposal could prevent more than 10,000 abortions currently performed each year on viable infants whose lives would not be protected by a partial-birth ban. True, the Daschle legislation contains significant loopholes. For one, the definition of a “viable” infant is entrusted to the physician. But pro-life lawmakers could rectify this problem with an amendment requiring physicians to perform a sonogram before every second-trimester abortion to verify the gestational age of the fetus. Other amendments should define more carefully the risks to the mother’s health that would justify an abortion. They should also make physicians’ decisions open to external review and legal challenge. Even without such amendments, however, Mr. Daschle’s bill would represent an improvement over current abortion policy.
More importantly, the Daschle ban would firmly establish that legislatures have an appropriate role in regulating abortion. As modest as Mr. Daschle’s measure might seem given the 1.6 million abortions performed annually in the U.S., it represents a radical departure from previous pro-choice policy. For decades pro-choice forces have insisted that the decision to have an abortion is a strictly personal matter between a woman and her doctor. All legislative attempts to restrict abortion have been answered with this categorical argument.
President Clinton, anxious for cover on his promised veto of the popular partial-birth ban, will find himself hard pressed to oppose Sen. Daschle’s proposal, even if it contains a more carefully defined health exemption. There is little doubt that the Daschle bill is constitutional: In the 1992 case of Planned Parenthood v. Casey, the Supreme Court held that Roe‘s blanket protection of abortion ends at fetal viability.
If Mr. Daschle’s bill becomes law, the politics of abortion will irreversibly change. Political debate, not judicial fiat, will increasingly determine what does, and does not, justify killing a human fetus. The debate will be about how much, not whether, to limit abortion. With this in mind, the pro-life Republicans in Congress must raise their own sights and recognize how far “incrementalism” could take them on the abortion issue.
For example, pro-life legislators (state or federal) could push for a limitation on abortions performed beyond the medically certifiable point at which the fetus can feel pain. Recent scientific evidence places this point as early as the eighth and no later than the 13th week of gestation. Moreover, the advent of ultrasound technology has enabled physicians (and prospective parents) to view the abortion procedure from the fetal point of view. So disturbing has this experience been that many physicians who have witnessed the apparent agony of the fetus during the typical suction-tip abortion (performed at just 12 weeks) have simply stopped performing abortions.
Some suggest that the moral dilemmas associated with fetal pain can be avoided by routinely anesthetizing the fetus before abortion. But consider what this means. Doctors do not anesthetize “tissue”; they anesthetize patients. Acknowledging that it is wrong to inflict pain on a fetus comes close to acknowledging that a fetus is a person.
For this reason, fetal pain legislation could, after Daschle, prove viable in the courts. Even in Roe, the Supreme Court acknowledged that if the fetus were indeed a person, it would be protected by the 14th Amendment. With the advance of medical technology, arguments denying the personhood of a second-trimester fetus now seem increasingly implausible. In any case, pro-life strategists who oppose Daschle overestimate the permanency of Roe, which the court, by degrees, has already qualified. In the 1992 Casey decision, the court acknowledged that the rights of the mother yield to those of the fetus at some point. Casey, not Roe, stated that “the line should be drawn at viability.” By first establishing the legitimacy of antiabortion legislation, and then passing legislation based on new evidence of personhood before viability, pro-life legislators can press the court to amend that judgment as well.
Moreover, constitutional principle never was Roe‘s strong suit. The precedent has survived not because it embodies a coherent legal theory — it does not — but because the majority on the court has proffered it as a framework for political compromise. In formulating and defending Roe, the court has functioned not as a judicial entity, but as a supralegislative body intuiting the “general will.”
Thus, the surest route to the constitutional abandonment of Roe may lie in progressively confronting the court with legislation based on a shifting political consensus. According to Wirthlin polling data, 85% of voters — including a significant percentage of those usually considered “pro-choice” — now oppose most abortions after the beginning of the second trimester. Legislation that focuses attention on early viability and fetal pain will only solidify this consensus, unleashing political forces that could weaken the court’s commitment to Roe.
Pro-life legislators have the votes and the political support to begin to challenge a quarter- century of libertine abortion policy. They should not fear short-term compromises that establish long-term points of principle — and create opportunities for future political and judicial victories. When liberal Democrats start to offer imperfect solutions to problems they have long refused to acknowledge, conservatives have made progress. Prudence dictates that in such situations conservatives first secure what has been offered and then press for more. Where abortion is concerned, conservatives have little to lose from such an incrementalist strategy, and far more to gain than they have probably imagined.