The Washington Post has a pretty good article discussing three different abortion-related ballot initiatives in play this November. The ballot initiatives are as follows:
- South Dakota: a measure to ban all abortions except in cases of rape, incest, or threat to the mother’s health.
- California: a parental notification requirement for minors seeking an abortion.
- Colorado: an amendment to the state constitution to define the term “person” as “any human being from the moment of fertilization.”
The success or failure of each of these three initiatives should provide good insight into (a) the merits of an incremental approach to curbing abortion legislatively and (b) the granularity of such a process (i.e., how large or small the increments should be).
I’ve often said (although not yet on this blog, which I’ve only recently begun) that the most effective way in which pro-lifers can advance a pro-life legislative agenda is through a slow, calculated, incremental approach, and not by means of a full frontal assault. This was the technique employed by opponents of segregation in the 20th Century. The genius of Thurgood Marshall and the NAACP was that they had so eroded the viability of Plessy v. Ferguson1 with case after case in which “separate” could not be considered “equal,” that by the time Brown v. Board came along, it pretty much collapsed under its own weight. My Con Law professor called this the “termite approach.”
Those who worked for the legalization of abortion proceeded in a similarly calculated fashion. First, legalize contraception for married couples,2 then for unmarried couples,3 then argue that precedent set forth the overarching principle that the state essentially lacked all power to regulate “matters so fundamentally affecting a person as the decision whether to bear or beget a child.”4
Pro-lifers should proceed in a similarly incremental, strategic approach. It’s not difficult to perceive a certain degree of annoyance (perhaps yielding increased resistance) in the Casey joint opinion in the words “the United States, as it has done in five other cases in the last decade, again asks us to overrule Roe.”5 If, rather than seeking complete nullification of Roe in each previous lawsuit, pro-lifers had simply attempted to chip away at it, there might have been a different result in Casey.
Maybe.
Interestingly enough, these three initiatives span the continuum of how much, or how aggressively, pro-lifers might attack abortion. At the far end of the spectrum, South Dakota seeks to outlaw all abortion, except in cases of rape or incest or when necessary to save the life or health of the mother. Such an initiative represents an attempt to almost completely reverse Roe. I say “almost” because while life and health exceptions were the norm for abortion prohibitions prior to Roe, rape and incest exceptions were not.
In middle of the continuum is the California parental notification initiative. A parental notification law (many states have them) does not prohibit any abortions per se, but requires that before an abortion may be performed on a minor, one of that minor’s parents must be notified. That is not to say that such laws do not reduce the number of abortions – they do – but, they do so only indirectly by ensuring sufficient decisional safeguards before the abortion may take place. It also contributes to a pro-life orthodoxy by impressing upon the mother in particular, and society in general, the gravity of the act.
Finally, at the other end of the spectrum is the Colorado initiative, which, like a parental notification law, is meant to communicate a respect for life, but, unlike it, places absolutely no real obstacles in the way of those seeking to obtain or perform abortions. Its sole purpose is to communicate that it is a life that is being taken in an abortion. It relies entirely upon a moral conviction in the hearts of individuals to not take that life.
As with all my posts so far, there is more that I could say. I’d very much like to further discuss the efficacy of enacting laws and constitutional amendments that function primarily to communicate a pro-life orthodoxy. It seems that many people think these actions useless, and that if we really want to fight abortion we need to go for the jugular. Well, thirty-five years after Roe, we know two things: (1) Roe persists, yet (2) more people consider themselves pro-life than in 1973. Maybe it’s time to reexamine that cynicism. The success or failure of these initiatives should provide a good rubric.
1. 163 U.S. 537 (1896).
2. See Griswold v. Connecticut, 381 U.S. 479 (1965).
3. See Eisenstadt v. Baird, 405 U.S. 438 (1972).
4. Roe v. Wade, 410 U.S. 113 (1973) (quoting Eisenstadt, 405 U.S., at 453).
5. Planned Parenthood v. Casey, 505 U.S. 833, 844 (1992).
