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Statement by Douglas Johnson
Legislative Director, National Right to Life Committee
January 24, 2005
The national movement to defend innocent human life gained
ground on several fronts during the 108th Congress (2003-04). With the
backing of the Republican leadership in both houses of Congress, and
President Bush, Congress enacted a national ban on partial-birth abortion.
Also enacted was the Unborn Victims of Violence Act, under which a child in
the womb, at any stage of development, who is injured or killed during
commission of a violent federal crime is now recognized as a legal victim of
that crime, along with his or her mother.
At the very end of the Congress, in November, we welcomed the enactment of
the Hyde-Weldon Amendment. This important new law prohibits any government
agency – federal, state, or local – from discriminating against any
health-care provider for declining to provide, pay for, provide coverage of,
or refer for abortions. This is a badly needed shield for health-care
providers who have increasingly faced attempts by state and local officials,
in some jurisdictions, to compel them to participate in abortions.
Our successes on these issues occurred even though the 2003-04 Senate did
not have a real pro-life majority. Indeed, in 2003 the Senate adopted an
amendment offered by pro-abortion Senator Tom Harkin (D-Iowa) to endorse Roe
v. Wade, 52-46. On some other issues over the past two years, the
pro-abortion side in the Senate prevailed by higher margins. For example, 56
senators supported overturning President Bush’s policy against funding
overseas organizations that promote abortion as a method of birth control.
In the November 2 election, we saw a small increase in pro-life votes in the
House. In the Senate, the pro-life gain was from one to three votes, or even
as many as four, depending on the exact issue. The gains on the Senate side
are of more consequence, because over the past decade, important pro-life
legislation has often been approved by the House of Representatives, only to
die in the Senate.
This shift makes us guardedly optimistic about the chances for success in
the Senate on a couple of bills that I will briefly describe.
Prospects have improved for federal legislation to protect minor girls and
the rights of their parents when these girls travel across state lines for
abortions, often because they have been urged to do so in order to avoid the
parental involvement laws of their home states. The House has passed three
times 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, but this legislation has
remained blocked in the Senate. We are now more hopeful for favorable Senate
action.
Public opinion polls consistently show on the order of 65% to 83% public
support for mandatory parental involvement laws. 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.
Another top prospect for legislative action this year is the Unborn Child
Pain Awareness Act, first introduced in May 2004 by Senator Sam Brownback
(R-Ks.) and Congressman Chris Smith (R-NJ). The bill would require any
abortionist to provide specified information to any woman seeking an
abortion at 20 weeks or later, regarding the pain that would be inflicted on
the baby, and to obtain a signed form accepting or rejecting administration
of pain-relieving drugs to the baby. In recent years, multiple lines of
scientific research have produced overwhelming evidence that by this stage
of development, the child can and does experience excruciating pain while
being aborted. Indeed, much of this capacity is probably present a good deal
earlier.
A national poll in November by Wirthlin Worldwide described this legislation
and found 75% in support, including 51% strongly in favor. Only 18% opposed
the legislation.
Beyond those issues, this is a time of a great deal of speculation regarding
the likelihood and timing of vacancies that may occur on the U.S. Supreme
Court. It certainly should be noted that the obstruction of judicial
nominees was a major issue in the defeat of Democratic Leader Tom Daschle in
the South Dakota Senate race, which was the first time in 52 years that a
Senate party leader was defeated for re-election. The obstruction of
judicial nominees was also an important issue in races for a number of open
Senate seats, and of the races in which this was true, all were won by the
Republicans. If Senate Democrats continue to obstruct judicial nominees at
the behest of liberal pressure groups, they do so at their collective
political peril.
We are seeing and hearing a lot of commentary about the “future of Roe v.
Wade.” Many of these commentaries and analyses incorporate seriously
erroneous assumptions, either explicitly or implicitly.
One often-seen distortion is found in summaries and poll questions that
gravely understate the actual scope of the so-called “right to abortion”
that the Supreme Court fabricated in Roe v. Wade and continues to enforce.
This is often expressed in terms that the Court legalized abortion for any
reason “in the first three months of pregnancy.” Sometimes it is stated or
implied that the Court allows limits on reasons for abortion after the first
trimester. All such formulations are demonstrably and gravely erroneous.
They have been repudiated repeatedly by the Court itself, and by many
journalists who have taken the trouble to look closely at the matter.
The real Roe v. Wade allows absolutely no limits on reasons for abortion
until “viability.” “Viability” refers to the capacity of the baby to survive
independently of the mother (with technological assistance), which is
reached in the latter portion of the second trimester (about five and
one-half months). Roughly ten percent of all reported abortions, or
approximately 130,000 a year, occur after the first three months.
The Court has also required states to allow abortion for “health” reasons
even after “viability.” Although the Court has not addressed this point in
recent years, in 1973 the Court majority said that “health” included “all
factors -- physical, emotional, psychological, familial, and the woman’s age
-- relevant to the well-being of the patient.”
The Supreme Court itself has emphatically repudiated the “first three
months” misconception again and again. For example, in the 1992 Casey
ruling, the Supreme Court reaffirmed Roe v. Wade, and explicitly held that
the abortion “right” applied with equal force at every point prior to
“viability,” adding, “We reject the trimester framework, which we do not
consider to be part of the essential holding of Roe.”
Characterizing Roe as legalizing abortion “in the first three months” or “in
the first trimester” has been formally declared erroneous by senior news
executives at the Associated Press, The New York Times, the Washington Post,
and other major organs of the news media.
Here is another myth: It is often reported that the current Supreme Court is
divided 5-4 on Roe v. Wade. Regrettably, this is inaccurate. There are six
sitting justices who have repeatedly voted to prohibit any limitations on
reasons for abortion prior to “viability,” which is to say, before five and
one-half months, or even later. Last year, the Annenberg Center’s
Factcheck.org admonished the John Kerry campaign for propagating the 5-4
myth, and that critique is in your press kit.
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. During 2004, 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.
The difference between the tally of justices on Roe (6-3) and the tally on
partial-birth abortion (5-4) is explained by the fact that Justice Antony
Kennedy has voted to uphold Roe – that is, he has voted against any limit on
reasons for abortions prior to “viability” – but he also voted in favor of
allowing a ban on the partial-birth abortion method.
Perhaps the greatest distortion of all is the concept that the effect of
overturning Roe v. Wade would be to automatically ban all abortions.
Sometimes this is explicitly stated – for example, by journalists’
statements that the Supreme Court could vote to “outlaw abortion.” More
often the distortion is conveyed implicitly in the way poll questions or
analyses are worded. 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.”
These explicit and implicit distortions about Roe v. Wade stack the deck,
and they are a disservice to the public. In polls, over 70% of the public
consistently supports protections for unborn children that are clearly
inconsistent with those permitted under the real Roe v. Wade – that is to
say, the Roe v. Wade that is being enforced by a majority of the U.S.
Supreme Court. In order for normal democratic processes to bring public
policy into line with the views of most Americans, Roe v. Wade must be
changed. In order to have a well-informed public debate over whether Roe
should be changed, we must have an end to distortions about what the legal
status quo is, and regarding the real effects of changing the Supreme
Court’s doctrine.
For further information on pro-life legislation in Congress:
http://www.capwiz.com/nrlc/home/
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