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What the election results mean
for the new Congress
By Douglas Johnson
Legislative Director, National Right to Life
(Statement at NRLC press conference in Washington,
D.C., November 4, 2004, two days after the general election)
In the 108th Congress, which will conclude later this
month, the U.S. Senate was the major bottleneck for some high-priority
pro-life legislation, even though the top Republican Senate leadership was
very supportive. We were ultimately successful in winning Senate approval of
the Partial-Birth Abortion Ban Act and the Unborn Victims of Violence Act,
but the latter measure survived a vote on a killer amendment by only a
single vote, despite public opinion polls showing about 80% support for the
concept of recognizing an unborn child as a legal victim when he or she is
injured or killed during commission of a violent crime. A number of other
important bills died because of anticipated filibusters.
The increased pro-life strength in the new Senate will improve the prospects
for some bills that in the past have been stymied by filibusters or
anticipated filibusters. This could include the Child Custody Protection
Act, which would make it a federal crime to take a minor across state lines
for a secret abortion, in violation of the parents’ right to be notified
beforehand. This bill has been passed three times by the House of
Representatives, but has remained blocked in the Senate. We believe that the
policy incorporated in this bill has overwhelming public support. The latest
evidence of this came in Florida, where an amendment to the state
constitution to advance parental notification for abortion passed 65-35% on
November 2.
An important new pro-life initiative, the Unborn Child Pain Awareness Act,
was introduced last May. Under this bill, if a woman seeks an abortion after
20 weeks – which is in the fifth month – the abortionist would be required
to provide her with certain accurate information about the capacity of the
unborn child to experience great pain during the abortion. In addition, the
abortionist would be required to provide the woman with a consent form by
which she would accept or refuse administration of a pain-relieving drug to
the unborn child.
The Wirthlin poll conducted after the election described this legislation
and found 75% in support, including 51% strongly in favor. Only 18% of this
national sample opposed the legislation. We hope to see this legislation
move forward in the new Congress.
Roe v. Wade and the Senate
The four-seat gain for the Republicans has major implications with respect
to future nominations to the federal judiciary, including the Supreme Court.
For the first time in 52 years, a Senate party leader was defeated for
re-election – and Senator Daschle’s leadership in the obstruction of many of
President Bush’s key judicial nominations was a major issue in that race.
Senator John Kerry repeatedly vowed that if elected, he would nominate to
the Supreme Court, and perhaps even to the lower courts, only those who were
committed to Roe v. Wade. That position was rejected by the American people.
In a Washington Post poll conducted October 23-26, 49% of likely voters said
they had more confidence in President Bush to choose future Supreme Court
justices, while 42% said John Kerry. Likewise, a Fox News / Opinion Dynamics
poll conducted October 27-28 found that 48% of registered voters thought
that President Bush “would do a better job on . . . appointing justices to
the U.S. Supreme Court,” while 40% thought that Kerry would do a better job.
The margin of error on these two polls was plus or minus 3%.
Certainly, various liberal advocacy groups will continue to demand that
senators attempt to obstruct any nominee who does not make a commitment to
the pro-abortion side – but if senators follow that counsel, many of them
may do so at great political peril to themselves.
The next major abortion case likely to reach the Supreme Court will pertain
to the Partial-Birth Abortion Ban Act. In 2000, a five-justice majority
struck down Nebraska’s ban on partial-birth abortion, and three federal
district courts have said that the federal ban – signed into law by
President Bush in 2003 -- is in conflict with that Supreme Court ruling. It
would take just a one-vote shift from that 2000 decision to uphold the
federal ban on partial-birth abortion, and we very much hope to see that
happen. But even if that law is upheld, it would not overturn Roe v. Wade,
which is supported by six members of the current Court.
We still sometimes see it reported in the news media that the current Court
is divided 5-4 on Roe v. Wade, but this is inaccurate. Justice Anthony
Kennedy has voted to uphold Roe, but believes that ban on the method of
partial-birth abortion is permissible.
The Annenberg Center’s Factcheck.org
admonished the Kerry campaign for propagating the 5-4 myth.
Roe v. Wade, as applied by six members of the current Supreme Court,
prohibits limits on reasons for abortion at any point before a baby can
survive long-term independently of the mother – the so-called point of
“viability” – and also requires states to allow abortions even after
viability to preserve “health,” which has been defined by the Court to
include mental and emotional “health.”
In advertising, the John Kerry campaign suggested that the effect of
overturning Roe v. Wade would be to instantly ban all abortions. But in
reality, the effect of even a complete overturning of Roe would be to
re-empower, but not require, elected lawmakers to protect innocent human
life through normal democratic processes. Even the Center for Reproductive
Rights recently acknowledged this in its September 2004 report “What if Roe
Fell?,” which said, “A Supreme Court decision overturning Roe would not by
itself make abortion illegal in the United States. Instead, a reversal of
Roe would remove federal constitutional protection for a woman’s right to
choose and give the states the power to set abortion policy.”
Yet, many journalists erroneously equate the overturning of Roe with a total
ban on abortions. This greatly distorts the real state of public opinion on
abortion policy. The post-election Wirthlin poll – consistent with many
earlier polls by various pollsters – shows a majority (55%) in favor of
limiting abortion to at most three circumstances: life of the mother, rape,
and incest (which is also President Bush’s position). Another 25% support
limitations that are clearly inconsistent with Roe v. Wade.
Embryo-Destructive Research / Human Cloning
Support for research that requires the killing of human embryos was a
centerpiece of Senator Kerry’s campaign. In the second presidential debate
on October 8, Kerry tried to justify such research on grounds that some
embryos are discarded by in vitro fertilization laboratories. But in
reality, Kerry also embraced the mass creation of human embryos by cloning,
for use in research – even cosponsoring, in July, the Hatch-Feinstein bill
(S. 303) to promote the creation of human embryos by cloning.
Polls have shown lopsided opposition to the creation of human embryos for
research. For example, an International Communications Research poll (August
13-17 poll) asked, “Should scientists be allowed to use human cloning to
create a supply of human embryos to be destroyed in medical research,” to
which 80% of a national sample said “no.” A Wilson Research Strategies poll
(August 16-18) found that 69% believed that all human cloning should be
banned, while only 24% believed that cloning should be allowed only to
create human embryos for stem cell research.
The policy supported by 69% to 80% of the public in these polls would be
enacted into law by the Brownback-Landrieu bill (S. 245), which would
prohibit the creation of human embryos by cloning. The group of newly
elected pro-life senators will increase the level of Senate support for this
legislation. However, it will continue to face stiff resistance from the
Biotechnology Industry Organization (BIO) and others who wish to use cloning
to create what President Bush has aptly called “human embryo farms.”
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