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From the October, 2007
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Abort, Retry, or Ignore? by Hadley Arkes

Abort, Retry, or Ignore?

The Simple Strategy the Political Class Won’t Use to Protect Life

by Hadley Arkes

For the last three or four years we have been at the threshold of the endgame on abortion. But almost no one in the leadership of the Republican party seems to have recognized the moment—or had the will to take even the simplest moves to act upon it. And the simplest moves were all that were needed.

Critical Steps

The first critical step had been taken in the summer of 2002, with the passage of the Born-Alive Infants Protection Act. That Act cast the protections of law around a child who survived an abortion. It was the most modest first step on abortion, meant to lay the groundwork for other steps to come.

One federal judge had declared that a child who survived an abortion was not a child protected by the law; he had been, rather, a fetus marked for termination. The right to an abortion was the right to an “effective abortion” or a dead child. The Congress would now reject that claim, and in protecting the child it would establish that even the child marked for an abortion had a claim to the protections of the law.

After some real strain among the Democrats, the bill finally passed without a dissenting vote from either party. The next year the Senate completed the passage, for the third time, of the bill on partial-birth abortion. This time, with a Republican President, it was signed into law. Still there were 151 votes against that bill in the House, 141 of them from Democrats.

After many challenges and blocking in the federal courts, the bill was upheld by the Supreme Court in June 2007, in Gonzales v. Carhart, by the narrowest vote (5–4). For the first time since Roe v. Wade the Supreme Court had sustained a bill that actually barred a certain kind of abortion.

The Born-Alive Act had actually done the same thing; it barred what has become known as the “live-birth abortion,” where the child is born alive and then put aside to die. But that Act has never been challenged in a court. Or to put it another way, no challenge has been posed to the constitutionality of that first, critical act of legislation in marking a limit to the right to abortion. That cardinal fact may yet come into play.

With these two moves in legislation, the pieces were now in hand for the endgame on abortion.

A Fatal Twist

Even when the bill on partial-birth abortion was being blocked in the courts, it was open to the President to speak in this way: The bill that bars that grisly surgery is being contested in the courts, but the American people overwhelmingly find that surgery repulsive. They should not be forced to become accomplices in that surgery by being compelled to fund it. Therefore, let us move to bar federal funding from any hospital or clinic that houses that hideous procedure.

I would have had the President add a fatal twist by having him simply raise the question, with the Committees on the Judiciary in Congress, of what entities count as “recipients of federal funds.” Would the formulas of the Civil Rights Acts apply?

If a student receives a loan from the federal government, the whole school becomes a recipient of federal funds, and all federal regulations come into play for all parts of the school. And so: If a clinic deals with people on Social Security or Medicare, is the whole place a recipient of federal funds? May all federal funds then be removed?

Now that the Partial-Birth Abortion Ban Act has been sustained, the President, with even more leverage, could say: This Act provides for the prosecution of doctors who perform that surgery. But instead of facing doctors with criminal and civil penalties, why not take the most moderate measures first? Why not simply remove federal funds from the hospitals and clinics that support this surgery?

If the Democrats seem uneasy or reluctant, he could bring them back to the Born-Alive Act. Not a single Democrat voted against that bill, and no one ever doubted its constitutionality. And so, why not bar funds from any hospital or clinic housing the “live-birth” abortion?

There is probably no hospital in the country that does not depend critically on federal money. Hospitals have been moving for years to get away from the vexing matter of abortion and let that trade shift to clinics offsite. The prospect of losing federal money would push the hospitals over the edge—and push the Democrats right to the edge as well.

Terminal Tensions

For what is involved here is that scheme of legislating by indirection, that scheme by which the reach of the federal government has been extended over the past 40 years in accord with the liberal agenda. It is still a nice constitutional question as to how the federal government may regulate or fund a private clinic on contraception or abortion. But the question is evaded simply by giving and withholding grants. If the money is not accepted, the rules do not apply; hence there is no binding legislation.

The Democrats know that if they permit this move to withdraw funding on abortion, they set in place the scheme by which Congress, in the guise of giving and withholding grants, can legislate on every aspect of abortion. The party of abortion will be compelled to resist.

But in resisting, the Democrats would be fighting on the worst terrain open to them, for they would be defending a procedure that 70 percent of the public find abhorrent. And yet even further: to resist this move the Democrats would have to take the lead in dismantling this whole scheme by which the federal authority has been extended in the service of liberal ends.

For the Democrats, this situation is bound to produce tensions that would be convulsive, even terminal. My own hunch is that the Democrats would finally give way, rather than challenging the power of Congress in spending.

But then the gates would be open: The withdrawal of federal funds would put, on hospitals and clinics, pressures they could not bear. There would be a rush to get out of the business of abortion, and with abortion being driven out of the sphere of public support, the pressures would mount for the Democrats themselves.

Would it not be time to detach themselves from a position that has driven away a large portion of their traditional constituency among Catholics and Evangelicals and stamped the party as the party of death?

The Endgame

That would indeed bring us, I think, to the endgame on abortion. For the Democrats, it would be a lose-lose situation; for the Republicans, win-win. But then why hasn’t the President taken these moves, which are virtually costless? And where are his “political” reflexes, his willingness to play the game: Why forego these simple moves that would induce strain in the tents of his adversaries, and divert them from other mischief?

Mr. Bush’s hesitations here may be explained by his desire to avoid talking about the issue of abortion except when it becomes inescapable. He had indicated, well before his candidacy for the presidency, that he would not lead on this issue.

And in taking that stance, he has helped to confirm the understanding that has settled in the Republican establishment: namely, that the issue of abortion is not the work of the political class but the business of the courts. When the issue of abortion arises, the estimable Karl Rove points out that the President has appointed John Roberts and Samuel Alito to the Supreme Court. In other words: We’ve given at the office; don’t expect us to take the lead in shaping the climate of opinion in which legislatures and courts may act.

But Roberts and Alito have already shown, in their brief time on the court, that they act in the style of conservative judges. Their inclination is to decide on the narrowest ground, deciding no more than strictly needs to be decided, leaving more power in the hands of others. By temperament and conviction, the conservative judges cannot take on the burden of solving the issue of abortion, which was brought forth by judges far less tethered to the discipline of judging.

It is never inapt to remind ourselves that Lincoln did not wait for retirements from the Supreme Court in order to reverse the decision in the Dred Scott case. He led a national movement to resist and finally overthrow that holding of the Court.

The work of reshaping the laws on abortion is distinctly the work of the political class. But Mr. Bush has helped entrench the understanding that this issue of abortion is somehow peripheral to the main business in our politics, that it is the work of judges, not the work of the political class.

The State of Things

And that is the state of things for the pro-life cause in our politics in the fall of 2007. An administration, with morale and conviction ebbing, finds its people now departing. With the prospect of nominating a Giuliani, the Republican party may reshape its constituency and effectively cease being the pro-life party.

As the presidential contest approaches, pro-lifers might raise, with the candidates, the simple question that may jolt them from their dogmatic slumber: On that wondrous day that Roe v. Wade is overturned, what would you do? After all, the federal government touches this matter at many points, from abortion in military hospitals and the District of Columbia, to the use of fetal tissue in the National Institutes of Health.

What are the first moves you would make to help the country recover from the lessons that Roe v. Wade imparted to the public? What first steps would you offer to the public in teaching anew the protection of human life? •


Hadley Arkes is the Edward Ney Professor of Jurisprudence and American Institutions at Amherst College and one of the authors of the Born-Alive Infants Protection Act. His most recent book is Natural Rights and the Right to Choose (Cambridge).

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“Abort, Retry, or Ignore?” first appeared in the October 2007 issue of Touchstone. If you enjoyed this article, you'll find more of the same in every issue.

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