The 40th anniversary of Roe v. Wade will bring the nation face to face with the abortion question once again. More accurately, it will serve as an opportunity for activists and supporters on both sides of the abortion controversy in America to consider where the nation stands, four decades after Roe.
Roe was decided by the U.S. Supreme Court on January 22, 1973. The divided Court handed down a confusing and complex decision, constructed by Justice Harry Blackmun in an effort to put the abortion controversy to rest. The decision was simple enough in its main point -- that a woman had a constitutional right to an abortion for any reason or for no reason within the first trimester of her pregnancy. The effect was to legalize abortion on demand nationwide.
Nevertheless, Roe did not put the abortion issue to rest. The decision was constructed out of Justice Blackmun's own constitutional and obstetric creativity. He invented the notion of three trimesters of pregnancy as a legal concept and then created an unfettered right to abortion within the first trimester. From the onset, abortion advocates have opposed any effort to restrict abortion in the second and third trimesters, or to regulate abortion providers and clinics.
Roe actually awakened and called into existence a vast pro-life movement that did not exist before the decision was handed down. With few notable exceptions, American evangelicals were willing for abortion to be marginalized as a Roman Catholic issue. Roe changed that. The horror of abortion on demand finally seared the evangelical conscience. In every presidential election since Roe v. Wade, abortion has been a central issue -- and never more so than in the 2012 election. The two party platforms of 2012 had diametrically opposed statements on abortion. That represented a division far deeper than existed in 1973.
Now, with the 40th anniversary of Roe, TIME magazine is sounding the siren for abortion rights with a cover story that warns: "40 Years Ago, Abortion-Rights Activists Won an Epic Victory with Roe v. Wade. They've Been Losing Ever Since." Really?
The article, written by Kate Pickert, points to the profound fact that, in at least some parts of the country, an abortion is harder than ever to obtain. She reports that 24 states have adopted more than 90 new restrictions on abortion since 2010, and then adds:
"These laws make it harder every year to exercise a right heralded as a crowning achievement of the 20th century women's movement. In addition to North Dakota, three other states--South Dakota, Mississippi and Arkansas--have just one surgical-abortion clinic in operation. The number of abortion providers nationwide shrank from 2,908 in 1982 to 1,793 in 2008, the latest year for which data is available. Getting an abortion in America is, in some places, harder today than at any point since it became a constitutionally protected right 40 years ago this month."
She writes about the fact that many states have parental notification laws for minors, that some states now require abortion clinics to meet regulations common to other medical facilities, and that other states require a waiting period and counseling. Also, at least 30 states do not cover abortion under Medicaid.
As Kate Pickert sees it, the abortion rights cause is in big trouble at the state level. In her words, abortion activists are "unequivocally losing." She also understands at least part of why this is so.
In her words:
"Part of the reason is that the public is siding more and more with their opponents. Even though three-quarters of Americans believe abortion should be legal under some or all circumstances, just 41% identified themselves as pro-choice in a Gallup survey conducted in May 2012. In this age of prenatal ultrasounds and sophisticated neonatology, a sizable majority of Americans support abortion restrictions like waiting periods and parental-consent laws. Pro-life activists write the legislation to set these rules. Their pro-choice counterparts, meanwhile, have opted to stick with their longtime core message that government should not interfere at all with women's health care decisions, a stance that seems tone-deaf to the current reality."
Beyond these facets of the issue, Pickert points to a widening gulf between older and younger feminists on abortion, both in terms of ideology and political strategy. Younger activists now favor an emphasis on "reproductive justice," she reports. As she explains, this term indicates "a broader, more diffuse agenda that addresses abortion access but also contraception, child care, gay rights, health insurance, and economic opportunity."
As TIME reports, there have been more than 50 million legal abortions in the United States since 1973, and one in three American women will have an abortion by age 45. The abortion rate for African-American women is 3.5 times that of white women. How does that square with Pickert's warning that abortion rights activists are "unequivocally losing?"
She sees the fact that the millennial generation was born after Roe v. Wade and that a generational split within feminism hampers the formation of a solid political front. But she also acknowledges a deeper problem: "Most Americans support access to abortion in cases of rape or incest or when the mother's life is threatened, along with a raft of common state abortion restrictions. Gallup data shows that 79% of pro-choice Americans believe abortion should be illegal in the third trimester of pregnancy and that 60% support 24-hour waiting periods and parental consent for minors."
Those statistics are the real source of her worry. The very fact that she wrote those two sentences in that way indicates the fear among abortion rights activists. They are losing ground on their central and inflexible demand that any woman or girl has a right to an abortion on demand without any external complication and without any necessary reason. Beyond this, abortion proponents also demand government funding for abortion and coverage under the new health care program.
The American people have not moved in their direction. To the contrary, citizens in a majority of states have pushed for and approved of significant restrictions on abortion. Furthermore, the development of new technologies such as the ultrasound and new approaches such as crisis pregnancy centers has changed the landscape since 1973. Crisis pregnancy centers now outnumber abortion clinics in America.
To her credit, Pickert cites abortion advocates such as Frances Kissling, who urge the abortion rights movement to accept and acknowledge that abortion is not just any other medical procedure. "When people hear us say abortion is just another medical procedure, they react with shock," Kissling said. "Abortion is not like having your tooth pulled or having your appendix out. It involves the termination of an early form of human life. That deserves some gravitas."
Kissling also conceded the political harm the extremism of the abortion rights movement has caused. "The established pro-choice position--which essentially is: abortion should be legal, a private matter between a woman and her doctor, with no restriction or regulation beyond what is absolutely necessary to protect the woman's health--makes 50% of the population extremely uncomfortable and unwilling to associate with us," she told Pickert.
The thrust of the TIME cover story is clear -- the fundamental victory won by abortion rights activists in Roe is now being eroded and is in threat of further weakening. But is it?
The pro-life movement must also reflect on the 40th anniversary of Roe v. Wade, and there is cause for much humble thankfulness. There has been a great and measurable shift in public opinion on abortion. The extremism of the abortion rights movement has not been appreciated by the American people, who do not see abortion as just any other medical procedure. Younger Americans are more likely than their parents to be pro-life in a general sense. The generation that knows ultrasound pictures on the refrigerator is not going to accept the fact that their unborn sibling is a non-person.
And yet, the hard and unbending truth is that Roe v. Wade stands, and that more than 50 million abortions have been performed since 1973. Several states have adopted legislation that restricts abortion at the margins, but abortion on demand remains the law of the land. Faced with legislation such as personhood amendments, even the most "pro-life" of our states have failed to act on what is supposed to be the central pro-life principle -- that all human life is sacred, from the moment of fertilization until natural death.
In truth, America -- and countless individual Americans -- have a divided mind on abortion and the sanctity of human life. We are a long way from a national consensus that could be reasonably and honestly described as pro-life. Four decades after its thunderous arrival, Roe v. Wade still stands, and the death count rises. Restricting the murder of the unborn is not enough. Even reversing Roe v. Wade will not be enough. Our task is to reach the hearts and minds of America with the message that every life is a divine gift, and that abortion is not the only grave threat to that gift. 40 years after Roe, that challenge still looms before us.
Kate Pickert, "What Choice?," TIME, Monday, January 14, 2013. http://www.time.com/time/subscriber/article/0,33009,2132761,00.html (Available only to subscribers.)