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Do We Know How to Reverse Roe? Print E-mail
By Peter Brown   
Tuesday, 08 February 2011

Yesterday, Robert Royal wrote another characteristically provocative piece here at The Catholic Thing. We surely do not know exactly what “poverty” is, let alone how best to fight it or how we will know when we have won the war against it. In this respect, abortion is a much more cut and dried issue. We know that abortion is immoral and should be stopped. But do we really know a foolproof manner to stop it? Color me skeptical. In other words, it is one thing to have moral certainty that abortion is wrong and must be stopped and quite another to have practical certainty about how to bring about its demise. 

Dr. Royal did not tell us what he has in mind, but presumably he advocates returning to the abortion regime prior to the odious 1973 Roe v. Wade decision. I know I certainly do. This political strategy against abortion has been the center of pro-life efforts since the movement’s inception in the 1970s. Yet it is a common misconception among pro-lifers that Roe “legalized” abortion. 

In fact, by the time the Roe decision was handed down in 1973, over two-thirds of American women lived within a two-hour drive of a state with legal abortion. Many larger states like California and New York had already liberalized their abortion laws and many other states were preparing to take up legislation to do likewise. Roe pushed the country farther and faster on abortion than it would have gone on its own and in a way difficult for abortion foes to reverse. But we should not kid ourselves that the end result of essentially legal early-term abortion would have been significantly different without Roe. Overturning Roe today might not be the Holy Grail that many right-to-lifers suppose. 

And that presupposes that pro-lifers even know how to overturn Roe. The political strategy here is easy enough to understand — get control of the GOP nominating process and make sure that all Republican presidential and vice-presidential candidates have strong anti-abortion bona fides and then make sure that those candidates get elected. Then, when Supreme Court vacancies occur, make sure that the president keeps his commitment to appoint “strict constructionist” justices.  

Well, how is this working?

For starters, pro-lifers have only succeeded in electing Republican presidents about half the time since 1976 — which is hardly surprising given we have a two-party system wherein both parties are pretty evenly matched historically. And about those SCOTUS appointments, well….of the seven appointments to the high court in the abortion era, GOP presidents have only managed to appoint four reliably anti-Roe justices. And that is not even counting Nixon’s “Minnesota Twin” disasters of Harry Blackmun and Warren Burger. 


      Massacre of the Innocents by François-Joseph Navez (1824)

I assume that all these nominations were made in good faith. But due to the confirmation process itself or political or social pressure on the bench, it’s apparently just not that easy to predict what a justice will do. Stealth judicial appointees have learned to dance around abortion questions in the confirmation hearings, but abortion opponents have had many unpleasant surprises from those judges whom they thought saw Roe as they did (see Souter, David: Supreme Court Associate Justice of). Over thirty years after the election of Ronald Reagan, pro-lifers are still waiting for that elusive fifth anti-Roe justice. 

Short of achieving an outright abortion ban nationally or through the states, pro-lifers would be and, indeed, are at the moment working on ways to restrict abortion. Parental notification laws, waiting periods, mandatory ultrasounds, bans on partial birth abortions and on public abortion funding, and so forth have been pushed successfully by pro-lifers. It is not unreasonable to assume that these initiatives have helped reduce abortions somewhat. But do we know how much they have reduced abortion and whether other measures in combination with these might reduce the rate further? No, we do not.

For instance, do we know to what extent the Family and Medical Leave Act — which mandated that employers provide their employees with unpaid parental leave — might have also helped reduce the abortion rate? This law was generally supported by Democrats but opposed by most Republicans. A similar question could be asked about other past and proposed future welfare-state expansions. Does subsidized medical care and income assistance (welfare or EITC) for lower income Americans disincentivize abortion or, alternatively, could it be structured by pro-lifers so that it did?  

The answer might suggest that it is not a good long-term strategy for pro-lifers to decouple opposition to abortion from political support for an effective social safety net. We do not really know how much these programs might actually help — even though the “other” political party currently champions them. 

But even if the strategy of reversing Roe were to succeed, would abortion opponents know how to stop abortion then?  

Even assuming they could enact them, for laws to succeed in a free society they have to enjoy broad public support — both in the ballot box and the jury box. Do pro-lifers really know how to convince enough of their fellow citizens that even early abortions should be generally outlawed? I’m skeptical. 

Moreover laws require at least some support in cultural mores to be effective. Practically speaking it would be very difficult to stop by statute alone what is now one of the most common medical procedures in America, absent some profound changes not simply in law and politics but culture as well. But how do we reshape the culture, to the extent that it is even possible to speak of a single American “culture?” I haven’t figured this one out yet and I don’t think anyone else has either.   

This is why I fear that knowing that abortion is wrong is a far cry from knowing exactly how to stop it! On the second question, we still have more to learn. 


Peter Brown is completing a doctorate in Biblical Studies at the Catholic University of America.

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Comments (20)Add Comment
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written by Bill, February 08, 2011
Thank you for a very well thought out piece, Mr. Brown. We have to go back to why abortion was implemented in the first place. Where are the abortuaries? Normally, in the poorer sections of cities. Why does the US Gov't fund Planned Parenthood? To rid itself of the responsibility of caring for children who have little to no chance of succeeding in a very competitive world. Today's foetus is tomorrow's Crip or Blood carjacking your daughter in her car. I think Catholics identify too much with this Country. Our whole Faith is predicated on eschewing the World and its evils. This Country goes to wars, aborts foetuses, insists on aberrosexual marriage and Catholics find there is little they can do about any of these things. The system serves the Lobbies.It is pragmatic.It does not exist to promote Good.
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written by Bangwell Putt, February 08, 2011
People change. Why they do so, from an historical perspective, does not seem as clear as we would like to think. Great wars, changes of regime, legislation, new technologies occur and they are certainly part of the explanation. They are not the whole of it though, and God (or not-yet-explained scientific questions for unbelievers) is part of the process.
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written by Lauri Friesen, February 08, 2011
I agree that Mr. Brown has made a convincing case for pro-lifers to embrace a broader variety of means for ending legal abortion. He has underlined the essential division on what appears to be a chicken and egg issue: do abortion laws (or the lack of them) contribute to social injustices or alleviate them? I would argue that Catholic teaching on subsidiarity would and should answer the question: the government is not and cannot be the principal source of good in the world. Secondly, Mr. Brown does not address the harm that many of our current and proposed policies do to individuals and society. So, I'll stick to the simplistic approach of only voting for ardent pro-life candidates, in the hopes of a trickle down effect that will bring good and life to us all.
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written by Dennis Larkin, February 08, 2011
Before the nation can be converted, the Church in America must be converted. But our own bishops are deeply divided on abortion. And Notre Dame has given intellectual cover and honorary doctorates to abortionist politicians for a generation. Before we can convert the nation, our own bishops and indeed the Church in America must be converted. Shame on us.
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written by Ken Colston, February 08, 2011
Abortions will always exist, like murder and theft. But making them illegal is surely the single largest deterrent. We don't expect to eliminate murder with law, but we also don't think that Social Security will do much to reduce it, either.

The pro-life movement, the prize of which is overturning Roe v. Wade, has done much to erode cultural support for abortion.
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written by pjm, February 08, 2011
@ Dennis Larkin

You nailed it exactly, thank you.
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written by Brian, February 08, 2011
Well argued. It makes little sense to put all efforts (and funds) into changing "the law." If abortion were already illegal would abortions stop? No they would not, and thus the victory would be hollow. That becomes even more true in this era of chemical abortifacients. While good work is being done by Pro-lifers to change laws, the larger group of us should focus more on changing the culture--because even if "the law" is not changed if no one would seek an abortion then true victory would be achieved. On this front there has been considerable progress, evidenced by polling data that now has a majority of Americans who believe abortion on demand is wrong. Total victory is never going to happen due to the presence of evil, but we must understand the desired end-state in order to plan effectively.
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written by Alan, February 08, 2011
You are right that Roe did not legalize abortion. But what it did was prohibit any reasonable restrictions, prohibit any of the states from exercising their sovereign power, and thwart the will of the people. Perhaps the worst thing it did was to allow our federal and state legislators to shirk all responsibility in the matter. The ultimate result of this was the attitude, "I'm personally opposed, but..." Roe gave them cover.

Overturning Roe will not outlaw abortion -- despite the fear-mongering of the abortion industry. But it will allow state legislatures to respond to the will of the people, who are overwhelmingly in favor of at least some restrictions.

To borrow from Churchill, overturning Roe is not the end, nor is it the beginning of the end; but it is perhaps the end of the beginning.
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written by Chris, February 08, 2011
Peter, it's an interesting perspective, but, I fear you have not only put the cart before the horse, but you are attempting to fill it with goods that you haven't even bought yet. Everyone talks about doing away with poverty without asking the question, "What do we then do with the poor?" Our immediated efforts need to be focused on repealing this horror that has not only taken the lives of so many innocent babies, but also destroyed the lives of so many young women. If we can do that, then surely God will provide the answer for the next steps moving forward.
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written by Lee Gilbert, February 08, 2011
"But how do we reshape the culture, to the extent that it is even possible to speak of a single American “culture?” I haven’t figured this one out yet and I don’t think anyone else has either."

1. Well, I have figured out a major component of it. Get television out of the home, particularly the Catholic and Evangelical home. How to do that is another problem. But once done the contrast in family life between us and the rest of society would be vivid and appealing. We would be cut off- not totally, but significantly- from oceans of anti-life propaganda and entry level pornography. The sexual temeperature would be significantly turned down.

2. With the television gone, aeons of time would open up that could be filled with family evenings together, reading together (from the lives of the saints, The Chronicles of Narnia, Herriot's books, The McGuffey readers) praying together, playing board games together, doing a bit oc catechism. Even in families sending their children to public or parochial schools, this would amount to semi-home schooling. The children would grow up with baptized, not paganized, imaginations. And this would show up in their conduct vis a vis the opposite sex.

All of this would contribute greatly to a pro-life culture. Now there are any number of priests and bishops who would say that their people would never do it. Leadership, however, consists in getting people to do what otherwise they would not.

My conclusion is that so far as the life issues go- more than anything else- we have a leadership crisis.
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written by Brian English, February 08, 2011
This article ignores a critical issue -- the composition of the Senate when a Supreme Court vacancy arises, even with a pro-life President.

If there had been more Republicans in the Senate in 1987, we would have had that elusive fifth vote instead of Anthony Kennedy.

With a pro-life President and 55 Republican Senators, we get Roberts and Alito. With a somewhat pro-life President and 55 Democrats, you get Souter.
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written by Howard Kainz, February 08, 2011
This article, presumes that pro-life efforts must come from Republicans. But there is a movement among Democrats (represented by the DFLA) which is strongly pro-life. In the last election they lost 14 pro-life candidates to the Republican opposition.
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written by Achilles, February 08, 2011
The answer is in the conversion of our society, a return to an understanding of the family and the intrinsic worth of each individual and the cultivation of the 7 virtues. As it is, our societal priority is self fulfillment, abortion is a natural fruit of a narcissistic society. I know a man who successfully murdered 5 of his children in the womb, but he said they were not humans yet. The one survivor was indifferent about abortion until the age of 40, now he is horrified that he could have felt so. Brotherless and sisterless, the quick murder in the womb or the slow murder in the cultivation or narcissisism, the wages of sin are death. A return to virtue and reality is our only hope.
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written by Brian English, February 08, 2011
"This article, presumes that pro-life efforts must come from Republicans. But there is a movement among Democrats (represented by the DFLA) which is strongly pro-life. In the last election they lost 14 pro-life candidates to the Republican opposition."

All this proves is that the Democrats will run pro-life campaigns in districts only where they absolutely have to. How many pro-life Democrats ran against pro-abortion Democrats in primaries? If you can find any, how many won?

And are there any pro-life Democratic Senators? And by pro-life, I don't mean Casey.
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written by Br. Timothy Combs, O.P., February 08, 2011
Granting that reforming society's collective conscience is an indispensable element of effectively advancing the pro-life cause, it is IMPERATIVE to remember that, in a country with such a positivist mindset as ours, the laws on the books do exercise a certain influence over the public formation of moral opinion. Even to the extent that legal positivism is recognized for the error that it is, there is - for that very reason - an intuitive expectation that civil laws bear some resemblance to their more authoritative counterparts (natural & divine). Hence, it is a fatal mistake to posit the conversion of public opinion as a prerequisite to changing the law, because the law is part of what forms public opinion in the first place.
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written by peterbrown, February 08, 2011
@Brian English

Well the GOP had the Senate in 1981 and we got Sandra Day O'Connor. On the other hand Clarence Thomas was approved by a Democratic Senate. Also let's not forget the near debacle of Harriet Miers who would have been presented to a GOP senate.

Partly you're right though. The broader point is that the current strategy against abortion depends too much on the fortunes of the GOP.
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written by peterbrown, February 08, 2011
@Fr. Brian Combs

Thanks for your remarks Brother Timothy. Certainly the laws themselves help to shape culture and so I'm certainly not arguing that pro-life laws have to wait until there is cultural unanimity on abortion. And I'm not arguing that anti-abortion laws would be totally ineffective if they were ever enacted. The mere fact of having laws would reduce abortions.

And Roe has lent the abortion side constitutional prestige that they surely would lack if the high court had not intervened. Still we cannot get around the fact that legal abortion was not imposed on America and would surely not go away even in the absence of Roe. It was the result of gradual shift in public opinion well before 1973. The legal abortion genie is out of the bottle in every industrialized country in the world including ours. How would you propose putting the genie back absent a significant shift in public opinion that the law should be changed?
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written by Brian English, February 09, 2011
"Partly you're right though. The broader point is that the current strategy against abortion depends too much on the fortunes of the GOP."

Well, the only way Roe is going to get overturned is to rely on the GOP to get it done.

And let's keep in mind the flip-side of all of this -- if Obama wins in 2012 and gets a Democratic Senate, he will probably get two more appointments to the Supreme Court. If that happens, there will be a pro-abortion majority on the Court for decades, and the pro-life strategy will become to try to prevent EVERY restriction on abortion being overturned.
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written by Chris Ramsey, February 09, 2011
This is an interesting article. I've read it at least twice now (along with the comments), and can't help feeling the strong similarity between the issue of abortion today and that of slavery prior to the Civil War. Both issues have the same two levels - moral and political - with the moral component tied to the fundamental questions of "personhood" and liberty and the political component tied to States Rights. I'm no philosopher, but it seems obvious to me that politics must be grounded in morality. There was a time when slavery wasn't considered to be immoral, but that obviously changed. Slavery still exists in the world, but it is condemned by God-fearing people, and is outlawed in most of the world. No one in their right mind would even suggest that some state of the union could vote to reinstate slavery because it has become morally abhorrent within our culture - but how long did that take?

Opposition to slavery was a moral stand, and the political fight followed. The same is true for abortion today. Politicians in the early 1800's probably said "I would never own a slave, but I won't tell a plantation owner what he can or cannot do..." until they were faced with a person like Frederick Douglass. Once you face the truth and accept it, there's no going back.

The other moral issue in the case of abortion has to do with human sexuality. We know what causes pregnancy, right? This isn't about contraception, either. Fornication is a sin. I was a fornicator in my youth, but I've repented of that. Masturbation is a sin. I engaged in masturbation, too, but that I've also repented of and have resolved not to commit that sin again. Sex isn't "recreation and leisure"! I have three children, two sons aged 20 and 18 and a daughter 15. My wife and I have taught them that sex outside of marriage is wrong and can lead to nothing good. Nothing. They're skeptical, but they also see the strong marriage between their mother and I (22+ years) and have some sense of what healthy human sexuality is all about.

I think it's particularly important for men of faith to take a stand regarding premarital sex and sexuality in general. The fact that I played "Russian roulette" in my youth doesn't mean I want my kids to do the same! We know what we have to do - so let's do it! If you have a child who is sexually mature but still living under your roof, do they know how you feel about premarital sex? Whether you engaged in it or not isn't the question. Do you tell the young man or young woman who's dating your daughter or son how you feel about premarital sex? Do you ask their parents what they've taught their children? If you think you "have no right to ask personal questions like that" you've already lost the battle!

We MUST start pushing back!
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written by blue8064, February 15, 2011
The Republican party is not pro-life either. The main reason for that is their support for a policy denying an increase in welfare payments to unmarried welfare mothers who have more children while on welfare (the family cap). Such a policy implicitly tells welfare mothers to abort their babies instead of allowing them to be born, and is therefore pro-abortion. On the other hand, working families have dependency exemptions and child tax credits to help them with raising children.

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