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A dear former student of mine, Geoff O’Connell, and his wife Cindy, just celebrated their fortieth wedding anniversary. They were married in a suburb of Washington on a Saturday, January 20, 1973, the same day as Richard Nixon’s second inauguration.  

The two events are linked in my memory in revealing something else about the news that was announced to the world two days later:  that the Supreme Court had proclaimed nothing less than a new “constitutional right” to an abortion. 

I was in Washington for the wedding, and on Monday morning I would return by train to New England. It was when I changed trains at Penn Station in New York that I saw the afternoon papers, delivering the dramatic news: It was news given to the world on the first day of business after the Inauguration.

And as we would discover, the timing was not an accident: We would later learn that Chief Justice Burger had alerted President Nixon that this decision of the Court in Roe v. Wade was coming, but that he would hold it back until after the election. The issue of abortion would not be thrown into the maelstrom of the campaign, with Mr. Nixon compelled to face the question, reach a judgment, take a stand.

This past week the March for Life was assembling for the thirty-ninth time, to mark the grim anniversary of Roe. But it assembled this time without its animating spirit and founder, the redoubtable Nellie Gray. And gone also were some of the leading figures in the pro-life movement who were there at the March in its earliest days: Henry Hyde, Dr. Mildred Jefferson, Dr. Joseph Stanton … and one could go on, listing the heroes who had now been removed by what Lincoln called “the silent artillery of time.” 

And yet, the March was as spirited as ever, radiating conviction as well as hope. The turnout, again, was massive, even though the weather in Washington in mid-January is always at the worst. Some of us have pondered the possibility of switching the March to the spring, with weather more welcoming for the celebration of life. But for many of our people the import of the March seems all the deeper precisely when it is harder to do.

The turnout can be explained now only by conviction alone, for it is harder to imagine the March taking place in darker times. In the first years of the March, there were hopes to pass a constitutional amendment to overturn Roe, and then, failing that, the Human Life Bill, to scale back Roe with an ordinary statute.

But now the government, and its regulatory apparatus, is in the hands of a party that looks upon abortion, not as a private liberty, but as a public good, to be funded with public funds and to be pressed with all of the levers of the law. The public itself has shown a critical shift now in its reigning sensibilities: 1.2 million innocent human beings are killed each year in abortions, without stirring outrage or even drawing much notice. More and more of the public have come to view the situation as one best kept out of view, as another one of those ongoing facts of life that we just have to live with.

Back in 2007, a bloc of five conservative judges on the Supreme Court sustained the federal bill barring partial-birth abortions. Justice Kennedy was not willing to overturn Roe v. Wade in a single stroke; but he seems willing to join with four conservative colleagues now in sustaining particular restrictions on abortion emanating from the states. 

Those restrictions have been emanating now in a stream: laws that require the viewing of a sonogram of the child in the womb, to require an anesthetic for the child about to be dismembered or poisoned, to require waiting periods, or require late-term abortions to be performed in hospitals with intensive care units for premature babies.  

In the past, the partisans of abortion would have gone to court instantly to resist any one of these measures. But it may be a tacit confirmation of what the conservative judges have put in place that the strategists on the other side have preferred to live with these new laws in states like Alabama, Idaho, Indiana, rather than take the chance of appealing to the Supreme Court while those five conservative judges are still there.   

Better to wait, they think, until Justice Kennedy retires, or President Obama can replace one of those five judges. And if Mr. Obama is not replaced, four years hence, by a pro-life president making appointments to the Court, this slender path in the legal system will likely be closed.

Still, that is not the end of the story. The late Joe Stanton in Boston used to say that if we managed to save only one or two lives, these vast exertions of the pro-life movement would all have been worth doing. Every day sidewalk counselors plead with women entering clinics to pause and talk, and reconsider. 

And every day, remarkably, those earnest pleas work. Women change their minds, lives are saved. Even in the face of political reversals, our people will not give up in the efforts to save lives one at a time. That is a measure of our predicament, but also our consolation – and the ground of our enduring hope.


Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. He is the author of Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is available for download. His new book is Mere Natural Law: Originalism and the Anchoring Truths of the Constitution.