Abortion politics has consumed my adult life, starting in 1972 when, at 17, I helped defeat the abortion-legalization Measure B on Michigan’s ballot. A few weeks later, on January 22, 1973—like December 7, 1941, a date that will live in infamy—the U.S. Supreme Court dive-bombed the country by erasing all state abortion laws—including in those states where killing babies was already legal—to make abortion on demand the lawless law of the land. Had Americans been vigilant, they would have insisted that the U.S. House of Representatives immediately impeach the seven pro-abortion “justices,” and that the U.S. Senate remove them from office.
Since that year, about 60 million American babies, as well as countless millions in other countries influenced by American judicial malpractice, have been slaughtered. Americans don’t suspect it, but, much as the ancient Carthaginians are remembered for child sacrifice, so America may be remembered two millennia hence for her own offerings to Baal-hamon.
I have now written a trilogy of reviews, covering the march toward the legalization of abortion, for this magazine. A review of Defenders of the Unborn: The Pro-Life Movement Before Roe v. Wade ran in the January issue; a notice of Abuse of Discretion: The Inside Story of Roe v. Wade, by Clarke D. Forsythe, appeared in the August 2014 number. The New States of Abortion Politics, by Joshua C. Wilson, covers the years since Roe. Wilson is also the author of The Street Politics of Abortion: Speech, Violence, and America’s Culture Wars.
In New States—note the plural noun—Wilson describes how, despite the Supreme Court’s general centralization of abortion politics in the federal judiciary after Roe, certain states have managed to circumvent SCOTUS. Although Planned Parenthood and other pro-abortion groups had long been well organized and enjoyed excellent legal representation, it has only been during the last 20 years or so that “leading Christian lawyers” came together.
These new well-established and well-organized activist lawyers have been able to challenge abortion, not in front of clinics but in front of judges. The antiabortion movement correspondingly moved away from the seemingly doomed frontal assault on Roe v. Wade and the unpopular clinic-front activism of the 1980s and 1990s and adopted an incremental strategy of fighting abortion at lower jurisdictional and administrative levels.
This challenge has mainly been issued in legislatures “in the more socially conservative areas of the country.” What follows, then, is a change of venue to state and federal courtrooms, as abortion clinics defend their right to kill. The present situation “now positions antiabortion activists on the offensive,” while pro-abortion groups “respond and play defense in the courts.” Pro-lifers, Wilson says, play “a long game,” hoping to win in courts that are increasingly conservative.
Wilson describes pro-lifers’ First Amendment initiatives, protests in front of abortuaries in particular. The shootings in 1994 by John Salvi at two abortion clinics in Massachusetts, which killed two clinic workers and wounded five, were one of more than a hundred attacks, most of them not fatal, which, though denounced by authentic pro-lifers, provoked laws in the Bay State and others limiting protests.
Nevertheless the aftermath, according to Wilson, demonstrated both “the potential for antiabortion groups to have an effect in traditionally liberal states” and “how important political and legal professionals have come to be for abortion politics” on both sides. In 2000, U.S. District Judge Edward F. Herrington struck down the Massachusetts law establishing around abortion clinics a six-foot corridor inside of which protesters were prohibited, while infuriating pro-abortionists by
invoking the antiabortion movement’s common rhetorical devices—the parallel drawn to the nation’s fight over slavery and, while indirect, the labeling of abortion as an “abominable crime” and “a grave moral evil.”
Massachusetts passed a 35-foot buffer in 2007, intended, as all such buffers are, to prevent sidewalk counseling of mothers seeking abortions, as well as intrusions by protesters. But in 2014 the U.S. Supreme Court struck down the Massachusetts law on First Amendment grounds in McCullen v. Coakley. Wilson notes, “The news however was not as bad for clinics or as monumental for the nation’s antiabortion activists as it initially seemed.” The 9-0 vote “came through three separate and distinct opinions. As such the vote tally masks the significant internal split concerning the network of clinic access protections, including some form of buffer zones.”
And so the battle for free speech against abortion rages on.
As the earlier books I reviewed described, and as I recall from the 1970’s and 80’s, the pro-life movement early on was fractured. I remember from my days in Washington, D.C., in the early 1980’s how the movement split over whether to throw support behind the Hatch Human Life Amendment, which would have overturned Roe v. Wade, or the Helms Human Life Statute, which would have declared a “fetus” to be a human being from conception. (The bills were named for Sen. Jesse Helms of North Carolina and Sen. Orrin Hatch of Utah.) Christian activists forgot Mark 5:25: “And if a house be divided against itself, that house cannot stand.”
The situation has changed in recent years, largely owing to a more unified emphasis on court battles:
By providing a degree of organization and coordination of like-minded groups and lawyers spread across the country, Alliance Defending Freedom . . . and other conservative Christian public interest law firms and advocacy conglomerates have fundamentally altered the abilities of antiabortion and Christian conservative advocates.
The new groups also provide “a wide range of concrete financial, personnel, intellectual, and media resources to the movement that allow it to compete in all political arenas without the constraints that previously hampered it.”
The last section of New States explains why Wilson believes “the judiciary generally” and the Supreme Court specifically will continue to “take a leading role as the area’s formative engine.” New States was published after Justice Antonin Scalia’s death on February 12, 2016, but also before the 5-3 decision, on June 27, in Whole Woman’s Health v. Hellerstedt, which overturned most restrictions, including in those instances in which a woman’s health was at risk, on abortion clinics. Yet Wilson has told me that the main argument of Part III of his book still holds, “which is that Court rulings continue to dictate what activists on both sides can do. You can already see the post-ruling experimentation in Texas’s enactment of rules requiring cremation or burial for fetal tissue, and states like Kentucky experimenting with a 20-week ban (which the Court was silent on in Hellerstedt) and implementing older forms of regulations like ultrasound requirements.”
And now Donald Trump is President of the United States. Court watchers speculate Trump could appoint as many as three new justices, the first being Scalia’s replacement. Of the majority in Hellerstedt, Ruth Bader Ginsburg is 83, Anthony Kennedy is 80, and Stephen Breyer is 78.
That means “the longer-term future of abortion politics is less certain,” Wilson said. “It is linked to how many court appointments Trump can get, and who is replaced. The addition of one Samuel Alito, Clarence Thomas, or Antonin Scalia-type appointee for the existing vacancy does not significantly change the calculus on the Court for abortion politics. If someone in the Hellerstedt majority is replaced by Trump, though, then it potentially changes the range of political opportunities.”
I take heart from his words: The movement is finally organized and prepared to seize any opportunity to save unborn children. A prime chance offers itself with Donald Trump’s presidency, and pro-life activists and voters effectively contributed to his election. Skeptics doubted whether Trump, once elected, would stick to his guns on this issue. However, on December 5, in response to Trump’s postelection appearance on 60 Minutes, pro-life activist Eric Scheidler wrote that “Trump went further than any previous Republican candidate or President-elect, stating outright that he wanted to appoint justices who would overturn Roe v. Wade.” And President Trump’s appointment of Sen. Jeff Sessions, who is strongly pro-life, to head the Department of Justice is especially encouraging, as the attorney general is the point man for vetting Supreme Court nominees.
It is necessary to keep encouraging Trump to appoint pro-life justices, as well as lower-court judges. Just as important, it is crucial to vet his appointees closely and to oppose any who might turn out to be another Kennedy, Sandra Day O’Connor, or David Souter.
We are unlikely to get another chance like this one.
[The New States of Abortion Politics, by Joshua C. Wilson (Stanford, CA: Stanford University Press) 116 pp., $12.99]