By Douglas Johnson
NRLC Federal Legislative Director
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 be 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." 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 legislative 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) 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 just 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."