Mirror of Justice

Prof. John Breen offers the following response to Prof. Bill Stuntz's recent Weekly Standard article discussed here and here.

"With his recent editorial “The Inconvenient Truths of 2008: Four Things the Party Loyalists Wont’ Want to Hear” (Weekly Standard, Feb. 18, 2008), Harvard Law professor William Stuntz again urges pro-life advocates to forsake the realm of politics.  Instead, he suggests that they should devote themselves solely to the task of persuading women not to make use of the legal right to abortion when confronted with an unwanted pregnancy.  Indeed, Stuntz confidently declares that “the political phase of the culture war is over” and that pro-life forces have lost, citing the failure of the ballot initiative in

South Dakota

in 2006 as proof.

Stuntz’s choice of the

South Dakota

referendum as a basis for predicting the supposedly dim prospects of pro-life politics is a curious one in that he fails to take note of many features about the vote that indicate otherwise.  First, he ignores the fact that pro-choice forces were united in their opposition to the ballot referendum which they saw as a crucial fight that had to be won in the nation-wide battle for abortion rights.  Pro-life groups, by contrast, were clearly divided as the wisdom of such a frontal assault on Roe at this point in time.  Given these different perspectives, it was not surprising that NARAL, Planned Parenthood and other pro-choice organizations poured money into

South Dakota

and vastly outspent their pro-life opponents – another fact that Stuntz overlooks.  Finally, the

South Dakota

result is hardly a sign that the pro-life message has no traction as a legal issue since the initiative proposed a ban on all abortions except for those necessary to save the life of the mother.  The pro-choice camp made the focus of its campaign cases involving rape, incest, and fetal abnormalities.  While these “hard cases” account for a tiny percentage of all abortions, the strategy was successful in convincing a majority of the electorate to vote against the initiative.  Had the proposal included exceptions for these cases, it likely would have passed by an overwhelming majority.

Worse than Stuntz’s misreading of the

South Dakota

ballot are his comments concerning the history of abortion regulation.  Indeed, Stuntz’s statement that “[i]n the years immediately before Roe, abortion was a crime, and the number of abortions soared” is simply misleading.  While it is true that the number of abortions rose in the years just prior to Roe, the increase took place not because legal restrictions on the procedure were ineffective, but because of the fact that between 1967 and 1971 seventeen states enacted liberal abortion reform statutes, including, most notably, California and New York.  Indeed, in

New York City

alone over 400,000 abortions were performed in the first two years after the new statute was enacted, earning it the nickname the “Abortion Capital of America.”

Although calculating the number of illegal abortions prior to both Roe and the state liberalization efforts has not been without controversy, the best available evidence indicates that the total number of abortions doubled or tripled under the regime of national legalization fabricated by the Supreme Court in Roe.  Not surprisingly, along with the staggering increase in the sheer number of abortions (from 744,000 in 1973 to a peak of over 1.6 million in 1990), Roe’s regime of legalization also brought about a comparable rise in both the abortion rate (the annual number of women of child-bearing age per 1000 having an abortion) and the abortion ratio (the annual number of confirmed pregnancies per 100 terminated by abortion).

Stuntz correctly notes that the abortion rate has fallen by about a third since 1980, but this welcome drop has not occurred in the absence of pro-life legal efforts.  Plainly, cultural engagement – efforts to persuade women not to exercise the right to abortion through sidewalk counseling, crisis pregnancy centers, support for adoption, and other forms of witness – have been crucial in bringing about this reduction.  At the same time, however, legal measures such as parental notification laws, laws against transporting minors across state lines, waiting periods, restrictions on the use of public funds, and the ban on partial-birth abortion, have played a vital role both in reducing the incidence of abortion and in educating the public about what is at stake in the procedure.  Indeed, the law’s dual function – as teacher and regulator – has helped to underscore and reinforce the cultural message conveyed through non-legal means.

Beyond Stuntz’s misreading of what took place in South Dakota and his grossly misleading suggestion regarding the effectiveness of criminalization prior to Roe, it is difficult to understand why Stuntz insists that pro-life advocates have lost a political debate that has never really taken place.  Indeed, Stuntz appears content to sound the call to surrender before the political battle has been joined.  This battle simply will not take place in earnest until the moment when Roe has been overturned. Yet securing the demise of Roe necessarily involves the political process precisely because electing politicians who are sympathetic to the pro-life cause (or at least opposed to the judicial usurpation of politics) is indispensable in the appointment of judges.

What passes for argument regarding the supposedly futile nature of pro-life politics is Stuntz’s assurance that certain unnamed “political insiders” believe that “[i]n any national election in which abortion rights were squarely at issue, the pro-choice side would win, and win big.”  Given the notorious unpredictability of politics (witness the fortunes of the candidates once dubbed by political insiders as the “inevitable” nominees in the current presidential contest) one wonders why Stuntz vests so much confidence in these prognostications.  Still, it might well be the case that if such an election were held today the results would not favor the pro-life cause.  Surely the moral and political groundwork for such a national debate needs to be laid, yet despite the fact that abortion has been an issue of some importance for almost forty years, no one could fairly say that a majority of voters have focused on abortion as a political issue to any real extent.  Abortion is, after all, a ponderous matter that requires us to grapple with the most fundamental sorts of questions, including what it means to be a human being and the limits of personal autonomy in a free society.  Indeed, precisely because it calls for serious dialogue about serious matters, most politicians and voters have been glad to let the issue remain in the “non-political” realm of the courts.  Only a watershed moment, like Roe’s reversal, would urge a reluctant nation to have the kind of debate that it is has now postponed for well over a generation.

Although changing the law and the culture will undoubtedly prove to be an arduous task, the prospects for success are good.  Indeed, despite having nearly every advantage – far greater financial resources and generous government subsidies, a media overwhelmingly supportive of the pro-choice cause, and the law in the form of a declared constitutional right – the pro-choice camp has been unable to accomplish its goal.  It has been unable to convince the American public that an abortion is an inconsequential act – a procedure that carries no more moral weight than having a tooth removed or getting one’s hair cut.  The polls indicate that the great majority of Americans would even now welcome far greater legal restrictions on abortion than are currently allowed under the framework of legal regulation invented by the Supreme Court.

In conclusion, Stuntz urges would-be culture warriors to follow the advice of Mick Jagger: “You Can’t Always Get What You Want.”  Some might be tempted to think that by offering this conclusion – by insisting that law has no role to play in the transformation of culture – Stuntz demonstrates a kind of “Sympathy for the Devil.”  This would be wrong, however, as Professor Stuntz forthrightly identifies himself as a pro-life Evangelical.  Nevertheless, the truth is that only by engaging in both law and culture – politics and persuasion – will pro-life advocates achieve the “Satisfaction” of building a society in which unborn children are welcomed and protected as new members of the human family.