The pro-life movement has made great strides in recent years, though many people who consider themselves active pro-lifers may not realize it. That’s because the good news has all happened at the state and local levels. State laws combining health-code restrictions on abortuaries with reasonable waiting periods and required ultrasounds have given local pregnancy-care centers, which now far outnumber abortuaries in every state of the union, the opportunity to offer more and more women an alternative to a “procedure” that they are likely to regret.
The opposition to such laws on the part of “pro-choice” activists has proved once again (as if further proof were needed) that their main concern has never been about women’s health (they reflexively oppose laws requiring abortuaries to meet the same health-code requirements as urgent-care clinics) or even their autonomy (“choice”). An ultrasound provides a woman real information about the life developing within her, and pregnancy-care centers that offer ultrasounds to expectant mothers who are “abortion-minded” (that is, those who are strongly leaning toward abortion or have made an appointment for an abortion before visiting the pregnancy-care center) can tell you what a difference access to such information makes: In 80-plus percent of those cases, the abortion-minded woman chooses instead to carry her child to term.
Neither the state laws nor the rapid growth in the number of local pregnancy-care centers has been aided by federal legislation or a focus on the federal courts. In fact, the U.S. Supreme Court, on June 27, 2016, attempted to reverse much of this progress in its decision in Whole Woman’s Health v. Hellerstedt. Hellerstedt overturned a Texas law that required abortionists to have admitting privileges at a hospital within 30 miles of their abortuary (in case something goes wrong, and the life of the mother, and not just of the unborn child, is at risk), and further required that “the minimum standards for an abortion facility must be equivalent to the minimum standards . . . for ambulatory surgical centers” (those urgent-care clinics that I mentioned above). While Justice Stephen Breyer confined his opinion for the majority to the Texas law, Hellerstedt will be cited in federal lawsuits against similar laws across the United States.
While the opinion in Hellerstedt was handed down after the death of Justice Antonin Scalia, the verdict was 5-3 (with the Republican appointee Anthony Kennedy joining the majority), so Scalia’s vote would have made no difference. And what is true of Scalia is, of course, true of anyone who occupies Scalia’s seat. (As I write, President Trump is set to announce his nominee to replace Justice Scalia some eight hours hence.) Further appointments over the next four years—to replace Kennedy, Breyer, and/or Ruth Bader Ginsburg—would potentially tip the balance, and thus provide the states with breathing room to craft legislation restricting abortion, even as Roe v. Wade remains the law of the land.
And that is likely the best that pro-lifers can hope for at the national level, under Donald Trump or any other Republican president. Set aside the fact that Republican appointees were responsible not only for Roe v. Wade but for every other major abortion-rights decision over the past 40 years. Trump inadvertently hit on the reality of the situation in his interview on 60 Minutes in the wake of the election. While proclaiming that he would appoint justices who were willing to overturn Roe, handed down in 1973, Trump also declared as “settled” Obergefell v. Hodges, which struck down all state laws restricting marriage to a single man and a single woman using essentially the same logic as Roe employed to strike down all state laws regulating abortion, even though Obergefell was handed down only in 2015.
Whether he understood what he was saying or not, Trump has a point. Obergefell is “settled” in the sense that the decision was less a legal revolution than the enshrining in constitutional law of a massive cultural shift that has occurred over the past few decades. The acceptance of same-sex “marriage” was driven not by legal means but by cultural ones, including the mainstreaming of the homosexual lifestyle on both the big and the small screens. Anthony Kennedy, the author of the majority’s decision in Obergefell, has never been a leader but a follower.
But the same is true of abortion and Roe. Roe came perhaps a bit earlier, before the cultural revolution surrounding abortion was as complete as the cultural revolution surrounding gay “marriage” is today, but the reality is that, 44 years later, a third generation of Americans is growing up with abortion as part of their cultural tapestry.
That tapestry needs to be rewoven before Roe will ever be reconsidered by the U.S. Supreme Court. The good news is that the reweaving has been taking place at the state and local levels, in the kind of legislation attacked by Hellerstedt and in the good work of pregnancy-care centers. And that points to even better news: By the time the reweaving is complete enough to prompt the Supreme Court to reconsider Roe, the battle in favor of unborn children will already largely be won.