Against Overwhelming Odds:

Congressional Efforts and Gains Since Roe v. Wade

By Richard M. Doerflinger

The 30 years following the Supreme Court's tragic Roe v. Wade decision are a story of pro-life achievements accomplished against overwhelming odds. While the New York Times and others hastily announced that Roe had "settled" the abortion debate once and for all, this grassroots movement refused to listen.

The odds it faced were formidable. During 12 of these past 30 years, the presidency of the U.S. was held by a Democrat who supported the High Court's decision. (In the case of Bill Clinton, the White House was occupied for eight years by a strong abortion advocate who would try to foil the movement's every advance.)

Until 1994 the House of Representatives was controlled by the Democratic Party, whose official position grew increasingly hostile to the pro-life position as time went on. During about half this 30-year period the Senate was under Democratic control as well. In short, there were times when pro-lifers had to overcome seemingly impossible odds, with both houses of Congress as well as the White House in pro-abortion hands.

Yet the pro-life movement has grown in numbers and strength. It has passed important federal laws that remain on the books today, and defeated many proposals that would have launched new assaults on unborn children and made the legal situation even worse.

Public opposition to the Roe v. Wade decision (and its companion case Doe v. Bolton) was strong and immediate. In its statement of January 24, 1973, the U.S. Catholic bishops' Committee for Pro-Life Affairs said the decisions were "bad morality, bad medicine and bad public policy" and called for their reversal. The National Right to Life Committee, which formally came into being months after the court's decisions, began to unite state pro-life groups across the nation to combat this new federal threat.

Initial efforts to combat Roe and Doe centered on passage of a Human Life Amendment to the Constitution. Although the House and Senate were then under Democratic control, the party's hostility to the pro-life position had not yet solidified, and hearings were held on a constitutional amendment by the Judiciary Committees of both Senate (1974) and House (1976).

Sufficient congressional support to pass an amendment could not be found, however. An amendment to return the power to restrict abortion to Congress and the states failed on a tie vote in a House subcommittee in 1976. The most important pro-life measure passed during these first two years was federal conscience legislation protecting doctors, nurses, and hospitals from forced involvement in abortion.

Attention soon shifted to the important issue of whether the federal government should actively support abortion with taxpayer funds. In 1976 a freshman Republican congressman from Illinois named Henry Hyde offered an amendment to the annual health appropriations bill to prevent federal funding of abortion. Abortion supporters were caught off guard, and the amendment passed.

The battle over the "Hyde Amendment" marked a new beginning in pro-life grassroots activism. The battle over federal funding was renewed each year and extended to many other federal programs - - federal employees' health plans, military hospitals, District of Columbia funding, and so on. Into the early 1980s Congress struggled repeatedly over the funding ban and the exceptions (if any) to be included - - with the House of Representatives, more responsive to grassroots public opinion, generally taking a stronger position than the Senate.

The Supreme Court's 1980 decision upholding the constitutionality of the Hyde Amendment was one of the movement's few successes in the courts, even as other decisions throughout the 1970s and 1980s cut off many other legislative avenues for respecting unborn human life.

With the election of Ronald Reagan and a Republican takeover of the Senate in November 1980, hopes revived for proposals to reverse the Court's 1973 decision. The Reagan campaign and presidency certainly helped to solidify the Republican Party's stance on pro-life issues.

However, following a pro-abortion propaganda campaign conducted by the news media, the Senate defeated two major measures to challenge Roe v. Wade. A "human life bill" proposed by Senator Jesse Helms (R-NC) was blocked by filibuster and then killed by majority vote in 1982.

The following year, a constitutional amendment to overturn Roe v. Wade and restore legislative power to protect human life, proposed by Senator Orrin Hatch (R-Utah), received 49 votes, 17 short of the two-thirds majority required for approval of a constitutional amendment.

Almost simultaneously two new challenges arose - - both of which ultimately ended in pro-life victories.

One especially disturbing challenge arose from the abortion mentality's expansion into the hospital nursery. The "Baby Doe" case of 1982, in which an infant with Down Syndrome was deliberately denied treatment and allowed to die of dehydration in Bloomington, Indiana, sparked widespread outrage.

The Reagan Administration, under the leadership of Surgeon General C. Everett Koop, issued federal civil rights regulations to prevent medical neglect of handicapped infants. These regulations protecting born children were attacked by federal courts, but their basic policy was enacted by Congress through 1984 amendments to federal child abuse legislation. The 1984 law marked the first time the pro-life and "disability rights" movements worked together on a major federal initiative - - a form of cooperation that would later be renewed over the issue of euthanasia and assisted suicide.

The other challenge involved efforts to promote abortion in the name of women's rights, through passage of a federal Equal Rights Amendment. Some state ERAs had already been used to argue that states must fund abortions if they fund other medical procedures, on the argument that abortion is a procedure needed only by women.

NRLC and most other pro-life groups took no position on the ERA per se but insisted that it should not be approved without an abortion-neutral amendment sponsored by Republican congressman James Sensenbrenner. Congressional sponsors refused to make this concession, so pro-life groups urged a "no" vote. The House defeated the unamended ERA in November 1983.

This battle over using the concept of "sex discrimination" for abortion advocacy would be renewed in later years. A "civil rights restoration act" was tied up over this issue for several years. When it was finally approved in 1988, it included an "abortion-neutral" amendment to ensure that federal sex discrimination regulations could not be used to force educational institutions and their health benefits programs to provide abortions.

The early 1980s also saw the abortion issue become a major force in foreign policy. President Reagan's "Mexico City" policy, preventing use of U.S. funds for international organizations that perform and promote abortions, was first announced at a UN population conference in that city in 1984.

In 1985 Congress approved the Kemp-Kasten Amendment to the foreign assistance appropriations bill to prevent funding of organizations that support programs using coerced abortion (such as the population program in the People's Republic of China). In later years both policies would be attacked, and sometimes weakened or reversed due to changes in Congress and the White House, but both remain in effect today.

In the late 1980s, with the Senate returning to Democratic control, the pro-life movement had many opportunities to appreciate the tangible and intangible benefits of having an ally in the White House.

President Reagan had authored his own pro-life manifesto, Abortion and the Conscience of the Nation. His administration issued regulations to defund federal family planning grantees that counsel and refer for abortions; placed a moratorium on proposed federal research using fetal tissue from abortion victims; banned importation of the abortion drug RU486 for personal use; and filed a brief in the Supreme Court's Thornburgh case urging reversal of Roe.

The pro-life movement's most significant Supreme Court victory of this era, the 1989 Webster decision, was cleverly used by abortion supporters to boost their own support in public opinion and Congress. Though the decision itself upheld very modest laws regulating abortion, especially late-term abortion, abortion advocates issued dark warnings of an imminent reversal of Roe and consequent return to "back-alley" abortions.

This strategy was effective in eroding congressional support, and some pro-life policies were retained only through President George H.W. Bush's staunch commitment to veto any bill that would reverse or weaken them.

But abortion supporters would overreach themselves in 1989, by introducing the "Freedom of Choice Act" (FOCA). This bill, ostensibly designed to "codify" Roe v. Wade in case the decision were reversed or weakened, was actually a sweeping measure to invalidate even modest regulations and restrictions on abortion that the Supreme Court had always permitted.

National Right to Life and other pro-life groups did a masterful job of highlighting the extremism of FOCA and its supporters over the next two years. They were able to regain some of the political momentum lost during the artificial Webster scare, and to discredit the bill so thoroughly that its sponsors never brought it to a vote.

With the election of Bill Clinton as president in November 1992, however, the movement entered its most challenging period. Immediately upon taking office, Clinton showed himself to be the most ardently pro-abortion president in history.

He immediately rescinded the Mexico City policy, the moratorium on federally funded fetal tissue research, the ban on abortions in military hospitals, and the regulations against abortion referrals by federally funded family planning clinics. Clinton also ordered his subordinates to move as quickly as possible to advance the approval of the abortion pill, RU486. With pro-abortion Democrats controlling both House and Senate, Congress soon approved a law codifying the Clinton policy on federal funding of fetal tissue research.

Some hope for pro-life advances was restored in the midterm elections of November 1994, when Republicans took back both chambers and vowed to act on a "Contract with America" that included support for pro-life measures. Perhaps the most important such measure was the Partial-Birth Abortion Ban Act, introduced by Republican congressman Charles Canady in June 1995 and approved by both House and Senate before the end of that year.

This bill focused on a very grisly abortion procedure - - one that kills an infant already mostly out of the womb by inserting surgical scissors into the child's head and sucking out his or her brain. This debate again highlighted the extremism of the pro-abortion agenda, and contributed to an important shift in public opinion in the pro-life direction (see story, page 34).

Unswayed by the enormous public support for this ban, President Clinton showed his own extreme commitment to the abortion agenda over the next two years by repeatedly vetoing the measure, and appointing new justices to the Supreme Court (Stephen Breyer and Ruth Bader Ginsburg) who could be expected to invalidate any restraints on abortion.

In one respect, President Clinton engineered a major failure of his own agenda by overreaching. By insisting that abortion would be included in the mandated benefits package of his new "health care reform" plan, he sparked pro-life opposition and ensured that no such reform measure could pass.

Pro-abortion medical groups also created a backlash by insisting that all obstetrics/gynecology residency programs should provide abortion training. A congressional measure countering this move was approved by both chambers, and even reluctantly signed into law by President Clinton after it was attached to a major funding bill. One measure for which President Clinton actually voiced support was a 1997 ban on federal funding of assisted suicide, responding to Oregon's approval of the nation's only law allowing this deadly practice.

The Clinton Administration's plans to fund destructive experiments on live human embryos were also stymied by Congress. After the National Institutes of Health announced its plans for funding such research in December 1994, Republican congressmen Jay Dickey and Roger Wicker introduced an amendment to the annual health appropriations bill to prevent this funding - - an amendment approved by Congress in 1995 and every year since. After the birth of "Dolly" the cloned sheep in 1997, however, Clinton helped to block a federal ban on human cloning, by supporting a phony substitute bill that would only ban the live birth of cloned children.

The debates on embryo research and cloning took on a new wrinkle when researchers began making exaggerated claims for the therapeutic benefits of "embryonic stem cells" late in 1998. While concerted efforts by the pro-life movement prevented Congress from rescinding or weakening the Dickey/Wicker Amendment, the Clinton Administration issued new regulations for funding embryonic stem cell research - - arguing that this policy did not violate the congressional ban, because federal funds would not be used for the specific act of killing human embryos for their cells. However, following his election in November 2000, President George W. Bush's administration blocked implementation of the regulations.

In a decision announced in August 2001, President Bush said he would limit federal funding to research on existing embryonic stem cell lines, and thus not allow federal funding of stem cell research that would require the destruction of human embryos.

With the President's announcement, debate shifted back to the issue of human cloning. Pro-life organizations insisted on a complete ban. Supporters of destructive research again introduced phony alternatives to ban only the live birth of cloned children. President Bush has vowed that he will sign only a genuine cloning ban, but to date Congress has been unable to pass a bill for his signature.

Like his father and Ronald Reagan before him, however, President Bush has been able to use his executive power to effect reforms. For example, the new Bush Administration has restored the Mexico City policy, improved federal regulations on fetal research, and recognized the unborn child as a patient deserving prenatal care in a federal children's health program.

Many congressional pro-life initiatives, however, have been blocked to date due to Democratic control of the Senate for much of this past Congress. This chamber was evenly divided at the beginning of 2001, with Vice President Dick Cheney available to break ties and give Republicans a working majority. But once Republican Senator James Jeffords switched to "independent" status and began voting with Democrats in June 2001, new Democratic majority leader Tom Daschle was able to help ensure that pro-life legislation (and some pro-life court nominees) would not even receive a vote on the Senate floor.

Temporarily this sounded the death knell for numerous bills approved by the House and supported by President Bush, including the Partial-Birth Abortion Ban Act, the Child Custody Protection Act which would prevent transport of minor girls across state lines to evade parental involvement laws on abortion, the Unborn Victims of Violence Act to penalize the harming of unborn children during the commission of violent federal crimes, and the Abortion Non-Discrimination Act to protect hospitals more effectively from forced involvement in abortion. This is why the midterm election of 2002, again giving Republicans control of the Senate, has been of such striking importance to the pro-life movement.

Pro-life Americans have struggled tirelessly for three decades to enact the strongest possible laws protecting the unborn, even when it seemed that all major government bodies were arrayed against them. On the 30th anniversary of Roe v. Wade, the President and the leaders in both chambers of Congress are pro-life and there is a majority in both Houses for some, but not all, pro-life legislation. However, marshaling the 60 votes in the Senate necessary to override a filibuster could be exceedingly difficult and would depend upon the specific issue. After this long wait, pro-lifers have higher hopes for the new Congress.

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