// Comments from the Fellows

E. Christian Brugger, D.Phil

THIRTY-FIVE AND LOSING STRENGTH
ROE AND THE DECLINE OF THE PRO-CHOICE MOVEMENT

Roe v. Wade is 35 years old, an age when one's opinions are expected to be settled. But although Roe is settled juridically for the time being, its manifest unsettledness in the hearts and minds of Americans continues to divide our nation. Roe 's imposed liberties have divided our national politics into pro-life and pro-choice. Our 50 states are designated red or blue depending in large measure on how the majority feel about Roe. It's been used as a juridical precedent to strike down homosexual sodomy laws and liberate gay marriage. It's altered our attitudes towards the unborn, sex and family. And it has resulted in the definitive exclusion of over 40 million people from the national conversation regarding whether its liberties are good or bad for America.

Some pundits argue that public opinion is increasingly turning in a pro-choice direction. Marcia Greenberger, for example, co-president of the National Women's Law Center (NWLC), a pro-choice advocacy group, is quoted in a Jan. 21 Washington Times op ed as saying that there is a "new political climate" in the US leaning pro-choice and that evidence is everywhere. She presents only one piece of evidence, namely, the results of a recent survey taken by Peter D. Hart Research Associates finding that 60 percent of Americans are opposed to overturning Roe . Now anyone involved in analyzing the validity of opinion polls knows that results easily can be skewed in favor of interested parties based on the way questions are formulated. Given that the survey was sponsored and paid for by the NWLC and Planned Parenthood Federation of America, both of whose interests would be considerably served by results favoring the legacy of Roe ; and given that Hart Research Associates, as it describes itself, is " one of the most respected and successful political polling firms in the country for Democratic candidates" and "has been the lead pollster on the influential Women's Monitor national polling projects for EMILY's List over the past four election cycles," we are justified in being skeptical about the results.

And that skepticism turns out to be justified. Respondents in the survey were told that the abortion liberty in Roe was subject to limited governmental restrictions. I've not seen the survey, just commentaries of it and press releases about it. But the limited restrictions presumably refer to the putative after-the-first-trimester restriction that defenders of Roe (either ignorantly or disingenuously) have said for decades characterizes the decision. It bears repeating that no such restriction exists. From the day it was decided Roe has effectively permitted unrestricted access to abortion throughout the entire nine months of gestation.

Harry Blackmun, Roe 's author, stated in Roe that the "compelling point" in a pregnancy before which no state can legislate against abortions is viability (i.e., the first trimester is immune from governmental restriction). Blackmun then said that States interested in protecting unborn life after this point are free to establish laws restricting abortion " except when it is necessary to preserve the life or health of the mother." Blackmun does not provide a procedural definition of "health of the mother" in Roe, but Roe 's text recommends readers to the companion abortion decision, Doe v. Bolton, for purposes of clarifying "procedural requirements" unspecified in Roe ("that opinion [ Doe ] and this one [ Roe ], of course, are to be read together"). It is interesting to note, that Doe was also drafted by Harry Blackmun and released on the same day as Roe.

Now, Doe does give a procedural definition of the term "health of the mother". Blackmun writes that the medical judgment that a mother's "health" is at risk "may be exercised in the light of all factors - physical, emotional, psychological, familial, and the woman's age - relevant to the wellbeing of the patient. All these factors may relate to health." In other words, an abortionist is free to perform an abortion on a woman if he has reason to believe the continuing pregnancy might harm her physically, emotionally, psychologically, familially, or be difficult to bear in light of her age. What does this imply for the first trimester limitation of Roe ? That's right, it m akes it effectively meaningless. Blackmun knew this; the law knows this, since it has never prosecuted an abortion doctor for ordinary abortions successfully performed throughout the nine months of pregnancy. And pro-abortion advocacy groups like Planned Parenthood Federation and NWLC surely know this, since unrestricted abortion access is their bread and butter.

Unfortunately, very few ordinary citizens know this about Roe . Most think it permits abortion to be restricted in the second and third trimesters. I have taught sexual ethics at the university level for seven years and have never encountered a class of undergraduates in which even half the students, even a quarter, knew that Roe permits unrestricted abortion, though of course all have been keenly aware that Roe protects their so-called "right to choose".

So back to the 60% survey results. Asking respondents whether they support a decision that permits abortion in the first trimester and that permits legal restrictions thereafter is likely to elicit a different response from asking (what is actually true of Roe ) whether they support a decision that permits unrestricted access to abortion from the very first to the very last day of an unborn baby's life. The credibility of the Hart survey therefore is at risk and hence so too is the credibility of Ms. Greenberger's claim that the tide in the U.S. has turned pro-choice.

Rather, there are three reasons to believe precisely the opposite. First, as we've read in the media in the past weeks, a Guttmacher Institute survey recently announced that abortions in the U.S. are at their lowest in over 30 years. In 1990 they stood at a high of 1.6 million per annum. In 2005 abortions dropped to 1.2 million, still a staggering number, but down almost a half a million. And this despite the fact that use of the anonymous chemical abortion drug RU-486, on the market since 2000, has been rising 22% per year and now accounts for 14% of total abortions in the U.S. If the hearts and minds of Americans were turning towards Roe , one would expect that abortions would be on the rise, especially when they are easier to secure than ever. Second, the Guttmacher survey revealed a steady decrease in abortion providers in the US , complaining that 9 out of 10 counties in the U.S. have no provider. The disappearance of abortion providers, whatever it proves (and it probably proves most that grass roots activism at local clinics has been successful), certainly is not a sign that winds are blowing in favor of pro-choice attitudes. The third reason is admittedly anecdotal but I think still illustrative of my point. I have been attending the March for Life in Washington , D.C. , since the mid 80s. When I first attended, the majority of marchers were middle aged pro-lifers and old timers. Over the years the March has become increasingly a young people's event with age demographics more akin to a World Youth Day than a political protest. Being pro-life was geeky in the 80s and even in the early 90s. Now it's cool. This evidence suggests to me that abortion defenders are losing the hearts and minds of the next generation. If you lose the young, you lose the nation.

E. Christian Brugger is an Assistant Professor of Theology at the Institute for the Psychological Sciences in Arlington, VA. He earned his D.Phil. in Christian Ethics from the University of Oxford. He also holds Masters degrees from Harvard Divinity School (moral philosophy) and Seton Hall University (moral theology).