Richard M. Doerflinger

The November 2002 elections were notable for at least two reasons. First, they improved the position of the party holding the White House in both chambers of Congressan almost unheard-of event in an off-year Congressional election. Republicans slightly increased their majority in the House of Representatives and regained control of the Senate by the narrowest of margins.

Second, the elections confirmed the remarkable staying power of the abortion issue in American politics. In 1973, when the U.S. Supreme Court handed down its decision in Roe v. Wade legalizing abortion, many commentators said the court had settled the issue. The court itself repeated that claim when it reaffirmed abortion’s constitutional status in Planned Parenthood v. Casey in 1992. Yet abortion remains very active as an issue in legislatures, and even in national elections.

Public opinion polls have reflected a rise in pro-life sentiment for years. Americans favor restrictions on abortion more than they did a few years ago. They are also more willing to call themselves pro-life, with an August 2001 Gallup poll showing the pro-life and pro-choice self-descriptions each garnering 46 percent support. The shift is perhaps most startling among young people, as dramatized by an article in The New York Times on March 30 titled Surprise, Mom: I’m Anti-Abortion. The author, Elizabeth Hayt, reports that teenagers and college-age Americans are more conservative about abortion rights than their counterparts were a generation ago. This sometimes shocks their baby-boomer parents.

The impact of this trend was apparent in the 2002 elections. According to a post-election survey conducted by the polling firm Zogby International in nine states with closely contested Senate races in 2002, the issue of abortion affected the vote of over 40 percent of the voters. The result was an increment of 7 percent support for pro-life candidates (that is, those who voted for a candidate because he or she opposed abortion made up 23 percent of the electorate, compared with only 16 percent who voted for a candidate because he or she supported abortion). In 2002 this trend generally helped Republican candidates for the Senate, where members’ positions on abortion follow their official party line more than in the House.

Yet Congress’s ability to reflect trends in public opinion can be slow, especially in the Senate, where only a third of the members are up for re-election every two years. The new changes in the House strengthen its margin of support for a variety of pro-life initiatives; the Senate has picked up a net gain of only two or three votes on these issues. Because the Republicans control the Senate, the Senate schedule and many key committees are directed by members who oppose abortion. But as the current filibuster of some of President Bush’s judicial nominees illustrates, often the magic number in the 100-member Senate is not 51 for a majority but 60, the number of votes needed to end a filibuster and proceed to a floor vote. It can be difficult to find 60 votes for any proposal, let alone on an issue as controversial as abortion.

These realities have forced pro-life supporters to do some serious thinking as to which proposals have sufficiently wide support and sufficient urgency to warrant full-scale lobbying efforts. At this point in the 108th Congress, three issues stand out.

Partial-Birth Abortion

This issue, of course, is not new. The partial-birth technique first became generally known to the abortion industry in 1992, when the Ohio abortionist Martin Haskell, M.D., presented his version of it at a seminar sponsored by the National Abortion Federation.

This grisly procedure for destroying an unborn child in the second or third trimester of pregnancy involves turning the child into a breech (feet-first) position, pulling him or her most of the way out of the womb, then stabbing the child in the back of the head and sucking out his or her brain tissue before completing the delivery. Pro-life advocates have been trying to pass a federal ban on the procedure for seven yearsgreatly assisted by a heroic nurse named Brenda Pratt Shafer, who, after watching Dr. Haskell perform it three times, was converted to a pro-life stance.

The natural human reaction to any description of this procedure is revulsion. The late Senator Daniel Patrick Moynihan summed up many Senators’ reaction by saying that it was just too close to infanticide. While any late-term abortion is a grisly business, this technique’s cold-bloodednessand its mockery of a breech delivery, requiring the killing of a child who is four-fifths out of the wombsparked an especially strong reaction inside and outside Congress. Among other efforts, the Catholic bishops’ conference sponsored postcard campaigns in parishes that ultimately generated tens of millions of postcards urging Senators to support a ban. It was one of the largest mail campaigns ever to reach Congress.

Congress approved a ban in 1996 and again in 1997, only to see the measure vetoed twice by President Clinton. Efforts to override the veto by a two-thirds margin narrowly failed in the Senate. President Bush’s election win in 2000 removed that obstaclebut by then the Supreme Court had handed down its 5-to-4 decision in Stenberg v. Carhart, rejecting such a ban in Nebraska as unconstitutional. The House again approved a federal ban in July 2002, but the Democratic majority in the Senate refused to allow a vote.

For the first time since it was crafted seven years ago, then, the ban on partial-birth abortion is poised for enactment. A bill reworded to respond to the Supreme Court’s criticisms passed the Senate on March 13 by a vote of 64 to 33, and at this writing a successful vote is expected soon in the House.

Unfortunately, attached to the Senate bill is extraneous language declaring that the Supreme Court’s Roe v. Wade decision of 1973 is correct and should not be overturned. That amendment was approved 52 to 46. Seventeen Senators voted to ban partial-birth abortion but to defend Roe, although a five-member majority on the Supreme Court believes that Roe protects partial-birth abortion. This apparent contradiction makes clear why the partial-birth abortion debate is so important in the long term.

The abortion-advocacy movement has decided that it has to defend even partial-birth abortion to be true to its own creed. Nothing matters about abortion except the fact that it is a free choice by the woman. To weaken that claim, to allow consideration for the unborn child to trump any claim to abortion, is to declare defeat.

Pro-abortion strategists know that if the debate turns to whether and when particular abortions might be justified, most Americans will reject late-term abortions (as well as the great majority of earlier abortions performed for nonmedical reasons). Like free speech advocates who feel obliged to defend even child pornography, abortion advocates told President Clinton and other political allies that they must insist on the purity of the choice principle. The upshot is that as it becomes clear that the pro-choice label defends even the killing of mostly-born children, more Americans are rejecting that label and identifying themselves as pro-life instead.

The legal contradiction the 17 internally divided Senators have created for themselves is equally acute. Many of these Senators are helping to filibuster against judicial nominees who would cut back on the breadth of the Roe decision. Thus they are declaring unfit for public office any judge who would uphold a law they themselves support. Logically, they must at least agree with Supreme Court Justice Anthony Kennedy, whose dissenting opinion in Stenberg favored upholding a partial-birth ban within the framework of Roebut they are blocking confirmation of any new federal judge who might help correct the Supreme Court’s majority’s error.

It remains to be seen what the practical impact of a ban on partial-birth abortion will be. This much we do know: the law will ban one procedure that threatened to take the abortion license outside the womb into outright infanticide; it will mark the first time in 30 years that federal law has banned any kind of abortion; it will put abortion practitioners on notice about the widespread public revulsion against late-term abortions; and it may force the Supreme Court to confront again the irresponsibly one-sided analysis it gave to the abortion issue 30 years ago.

Abortion Non-Discrimination Act

Another important measure is the Abortion Non-Discrimination Act, which was passed by the House last year but was not taken up by the Democratic-controlled Senate. ANDA responds to yet another recent effort to expand what the abortion liberty meansan effort that threatens to turn the slogan freedom of choice into a tool for coercion of conscience.

The bill would prohibit any federal agency, or any state that receives federal health program funds, from discriminating against an individual or institutional health care entity for declining involvement in abortion. It builds on a section of the U.S. Code enacted by Congress in 1996, which protects medical residency programs from such discrimination when they decline to offer abortion training.

This proposal is simple and straightforward. If hospitals are protected from having to train their medical staff to do abortions, no one in his right mind would insist that the hospital should nonetheless be forced to perform them. But the proposal runs up against a new definition of choice that abortion advocacy groups have been crafting in recent years.

These groups have begun openly claiming that mere choicemerely being let alone by governmentis not sufficient. To be truly meaningful, the choice to have an abortion demands access to physicians who will perform it. And because so few physicians and hospitals are actually interested in doing abortions, access may require active government mandates. Segments of the health care community that object to abortion on moral or religious grounds, like Catholic hospitals, pose a special threat to this effort to mainstream abortion; and they have been targeted by specific pro-abortion campaigns, like the Merger Watch campaign initiated by Family Planning Advocates in New York.

Yet Catholic hospitals are not the only targets of such efforts. However much the secular medical establishment may be pro-choice in its political views, the vast majority of physicians, nurses and hospitals decline involvement in abortions, and most federal health programs decline to fund abortion except in rare, special circumstances. So corrective legislation is needed not only to allow Catholic hospitals a conscientious exemption from the secular norm of abortion-as-health care, but to keep ideologically driven groups from establishing abortion as such a norm in the first place. The law should protect all individuals and institutions, religious or secular, from being discriminated against by government because they do not provide abortions.

The need for such legislation is apparent. In several states, pro-abortion groups have convinced state attorneys general to intervene in mergers involving Catholic hospitals to prevent the community from losing access to abortion. In one such case in New Jersey, abortion proponents actually tried to force a Catholic hospital to set aside some funds from its acquisition of a formerly secular hospital to establish an abortion clinic on the grounds of the new Catholic system. In Alaska, a 1997 state supreme court ruling has required a community hospital receiving public funds to provide abortions against its own policy; and in a footnote to the ruling, the justices suggest that even religious hospitals may not be exempt from this mandate.

The U.S. Senate approved the aforementioned 1996 law protecting residency programs by a vote of 63 to 37. Even many legislators claiming a pro-choice stand have realized in the past that logically they must protect choices not to be involved in abortion. But the organized abortion movement has increasingly dedicated itself to establishing abortion as a positive entitlement for women. Debate on ANDA is therefore expected to be intense.

Human Cloning

One area left untouched by Roe v. Wade is the legal status of human embryos outside the womb. Even while ruling that the unborn child’s disputed claim on life could not override a woman’s right to be free of an unwanted pregnancy, the Supreme Court (most notably in the 1989 Webster decision) has allowed states to recognize and protect human life from conception onward in other contexts. For many years, laws forbidding harmful experimentation on human embryos have existed in Michigan, Pennsylvania and other states without constitutional challenge.

This area of law has nonetheless become a federal battleground, especially after researchers announced progress in isolating embryonic stem cells from one-week-old human embryos in November 1998. These versatile and fast-growing cells have been portrayed as a kind of Holy Grail for regenerative medicine, offering the means to repair the damage of Parkinson’s disease, diabetes, spinal cord injury and a wide array of other conditions. It was said then that an ample supply of stem cells could be obtained by destroying unwanted or spare embryos now in frozen storage at in vitro fertilization clinics around the country.

These initial claims of medical miracles are increasingly showing themselves to offer more hype than hope. Over four years later, embryonic stem cells have yet to reach clinical trials in any human disease. In fact, over two decades of work using mouse embryonic stem cells have failed to produce a safe and effective treatment for any disease in mice. Instead of reining in their expectations, however, supporters have expanded their agenda to propose specially creating human embryos solely for research purposes.

Such creation-for-destruction was once seen as the ultimate abuse in human embryo researchone that was called unconscionable by the editors of The Washington Post and rejected in federally funded programs by President Clinton, when it was proposed in 1994. Yet once research on spare embryos had won some acceptance in lawmaking circles, researchers announced that turning this research into therapies would require tailor-made, genetically matched embryonic cells for each individual patient, to prevent rejection of the cells as foreign tissue. They proposed cloning as the ideal way to achieve this.

Thus while almost all lawmakers say they oppose reproductive cloning (cloning human embryos to produce a pregnancy and live birth), some support so-called therapeutic cloning (in which such embryos are produced and destroyed in the laboratory for research purposes). While the therapeutic goals of cloning remain a distant dreamin fact, no one has yet documented the creation of a viable cloned human embryo, and mounting evidence suggests that it will be difficult or impossible to do sothe scientific establishment continues to denounce the complete ban on human cloning approved twice by the House of Representatives as an obstacle to progress.

This establishment has some unusual allies in the new Congress, including Senator Orrin Hatch (Republican of Utah), who has regained his seat as chairman of the Senate Judiciary Committee. While he has generally maintained a pro-life voting record, Senator Hatch has convinced himself that an embryo produced by cloning (and any embryo which has not resided in a woman’s womb) is not a human being. He therefore opposes the House-approved ban, sponsored in the Senate by Senator Sam Brownback (Republican of Kansas) and Senator Mary Landrieu (Democrat of Louisiana), and has joined Senator Dianne Feinstein (Democrat of California) in sponsoring a bill that he says will ban the birth of cloned babies while allowing the use and destruction of cloned embryos for medical research.

Senator Hatch has even said that a born child engendered by cloning may not be a human being. The logic of his position is that a human produced by cloning, at any stage of development, lacks human rights and may be treated as a piece of property or a research animal.

Some who support abortion see the cloning issue entirely through the lens of the older issue. They think a complete ban on human cloning would presuppose and promote the idea that the human embryo is a person deserving legal protectionan idea that could then undermine the abortion liberty. But this is a myopic view. Those who oppose cloning have a wide variety of views on the personhood of the embryo; the ban that passed the House of Representatives was supported by some of Congress’s most liberal pro-choice members.

It is the Hatch/Feinstein bill that commits government to one extreme view on the status of the embryo. By allowing use of the cloning procedure to create human embryos but then banning any effort to let the embryos survive to birth, this bill defines a class of human beings that it is a crime not to destroya class of living, genetically human beings whose only destiny is to be a laboratory object. It is far from clear that these humans would be respected as anything more than that, even if they did manage to survive into the fetal or even postnatal stage. We have here an agenda that undermines the very idea of intrinsic human dignity and equality at its root.

Additional Initiatives

These three issues are by no means the only major pro-life initiatives that may considered by the new Congress. Other initiatives approved by the House in the last Congress may now receive Senate attentionfor example, the Child Custody Protection Act (to prevent adults from taking minors across state lines to avoid state parental notification laws on abortion) and the Unborn Victims of Violence Act (which would provide penalties for harming an unborn child in the course of a violent federal crime against his or her mother). Women Deserve Better than Abortion, a theme on prominent display at the most recent March for Life protesting the Supreme Court’s abortion decisions on Jan. 22, 1973, may also translate into legislative proposals to support caring alternatives for women considering abortion.

The three debates outlined above, however, dramatize how persistent and how fundamental are the moral issues raised by the abortion controversy. Will we allow abortion to become infanticide, choice to become coercion of conscience and progress to become a radical step backward in our ideals of human equality? Addressing all three questions in this Congress will be a formidable challenge.

Richard M. Doerflinger is deputy director of the Secretariat for Pro-Life Activities of the U.S. Conference of Catholic Bishops.