Doing What Can Be Done

American social reform movements have typically sought guidance from theologically informed morality for their political action. But what actions theology and morality demand are not always clear. The anti-slavery movement endured considerable internal debate over political action: the Boston Unitarian Minister Theodore Parker condemned Daniel Webster for his participation in the Compromise of 1850 with the words, “They enslave their children’s children, who compromise with sin.” Similarly, the bill to ban partial-birth abortions that the House of Representatives passed on November 1 has engendered considerable internal debate over political action within the pro-life movement.

The prohibition on D&X, or partial-birth, abortions was originally debated and approved by the House Judiciary Committee last July. First publicized by an Ohio abortionist at a meeting of the trade association of abortionists, the D&X (dilation and extraction) method involves removing the unborn child feet first from the womb, cutting into the back of the head with surgical scissors, extracting the brain tissue, crushing the skull, and then extracting the rest of the dead child’s body. Two Ohio abortionists have performed hundreds of these, usually after twenty weeks of pregnancy. Capitalizing on the political gains made in the House in the November 1994 elections, proponents of the ban seek to overthrow the abortion legacy of Bill Clinton, to educate Americans about the cruelty of the abortion culture, and to remind them that thousands of late-term abortions are committed by abortionists every year.

Despite the bill’s sponsorship by the pro-life movement’s leading statesman of the past twenty years, House Judiciary Committee Chairman Henry Hyde (R-Ill.), some pro-life leaders have condemned the partial-birth abortion ban-and the pro-life organizations supporting it-because the bill allegedly contains a “health” exception, permitting a D&X abortion to protect the health of the mother. All abortions take the life of an unborn child, of course, but the purity of pro-life principle in those who condemn the bill does not guarantee success in banning all abortions-and may, in fact, help extend the reign of the abortion terror.

Moreover, the pro-life objectors may be misreading the House bill, for, in fact, it contains no “health” exception, but rather a much more narrow “affirmative defense” by which the abortionist may attempt to prove-only in the context of a criminal prosecution-that he used the D&X method to “save the life of the mother.” Subsection (e) of the bill states:

It is an affirmative defense to a prosecution [of the abortionist] or a civil action under this section, which must be proved by a preponderance of the evidence, that the partial-birth abortion was performed by a physician who reasonably believed-(1) the partial-birth abortion was necessary to save the life of the mother; and (2) no other procedure would suffice for that purpose.

This is not a life-of-the-mother exception. It does not allow or permit any partial-birth abortion to proceed. It states only that after the fact -in the context of a prosecution for performing a partial-birth abortion-an abortionist may raise the defense (with no guarantee of success) and must prove both that the abortion was necessary to save the mother’s life and that no other procedure would suffice. Subsection (e) is drafted so narrowly that it may never be used as a practical matter, and it runs as close as possible to the constitutional limits. The sponsors of the bill did all that was reasonably within their power to do.

No pro-life leader wants to be just regulating abortion ten years from now. In the Anglo-American tradition, the common law treated each unborn child as a person at the earliest point in gestation when it could be determined to be alive, and the law protected the unborn as far as contemporary medical knowledge allowed. We want to restore that American tradition of protecting the unborn to the greatest extent possible in law and medicine. We want to prohibit the abortion trade.

But, reluctantly and realistically, we must admit that there are serious constitutional and political obstacles to passing any limitations on D&X abortions (or any other kind of abortion) without some kind of “health” or “life of the mother” qualification. There is, in particular, a ceiling of Supreme Court decisions that prevents full protection. The object must be not to ignore such obstacles but to ultimately overcome them.

Currently, abortion is allowed at any time of pregnancy, for any reason, by the Supreme Court’s decisions in Roe v. Wade, Doe v. Bolton , and Planned Parenthood v. Casey . In addition, the Supreme Court has required that laws restricting abortion contain exceptions for “health.” That definition of “health” is far broader than the “life of the mother defense” in the House bill. The Supreme Court, in the 1992 Casey decision, held that a “health” exception was constitutionally mandatory. If the “life of the mother” provision is not included, the bill may be immediately invalidated by a federal court-its beneficial effect thereby lost, with pro-life legislators at the state and federal level inhibited from passing future legislation.

In addition, in the 1979 Colautti and the 1986 Thornburgh decisions, the Court held that a statute could not weigh the child’s life against the mother’s health. The state and federal governments are required to allow an abortionist’s “concerns” about the mother’s health-including psychological health-to trump the unborn life. Thus, arguably, a ban on a type of abortion is invalid if the mother’s “health” would be preserved by using that type of abortion.

If exceptions are not explicitly incorporated into a criminal law, the state or federal law risks invalidation as unconstitutional. Although it is doubtful as a medical fact that a D&X abortion would ever be required to preserve the mother’s “health” or “save her life,” if a D&X abortion might be required in a particular instance to preserve the mother’s health, it is authorized by federal constitutional law.

After Webster and Casey this health exception is arguably not constitutionally required for late-term abortions, but no one knows and there are no guarantees. We may see Planned Parenthood or the National Abortion Federation challenge the House bill, if it survives the Senate and a Clinton veto. The pro-life movement may benefit from additional publicity given to partial-birth abortions through such litigation and the Supreme Court confronting these horrific abortions. But that speculation about the future does nothing to avoid the constitutional and political obstacles that the sponsors faced at the time the bill was drafted in the House Judiciary Committee.

Pro-life Americans may be upset about the injustice of a broad health exception-allowing abortion on demand throughout pregnancy-but righteous indignation without political prudence and legal understanding are the ingredients of political futility. If acceding to what is already authorized by the unjust federal law is morally impermissible, it means that the pro-life movement is prevented from accomplishing any lessening of the evil impact of the unjust federal law of abortion on demand.

The partial-birth abortion ban is not a moral compromise. It does not concede the legitimacy of any abortion. It merely recognizes current legal and political obstacles and acts within them.

Pope John Paul II stated clearly the moral principle on which this approach is based in his recent encyclical, Evangelium Vitae. He begins with a stern injunction: “In the case of an intrinsically unjust law, such as a law permitting abortion or euthanasia, it is therefore never licit to obey it, or to take part in a propaganda campaign in favor of such a law, or vote for it.” In the next paragraph, however, the pontiff make clear what does not fall within that prohibition:

A particular problem of conscience can arise in cases where a legislative vote would be decisive for the passage of a more restrictive law, aimed at limiting the number of authorized abortions, in place of a more permissive law already passed or ready to be voted on . . . . In a case like the one just mentioned, when it is not possible to overturn or completely abrogate a pro-abortion law, an elected official, whose absolute personal opposition to procured abortion was well known, could licitly support proposals aimed at limiting the harm done by such a law and at lessening its negative consequences at the level of general opinion and public morality. This does not in fact represent an illicit cooperation with an unjust law, but rather a legitimate and proper attempt to limit its evil aspects.

Here, the Pope appeals to principles of political morality and statesmanship that go back at least to Aristotle. The Lincoln scholar Harry Jaffa has put it well: “It is the essence of practical wisdom to adapt its judgments to differences in circumstances. The purpose of practical wisdom is always the same, and the wise statesman will act to achieve the greatest measure of justice that the world in which he is acting admits.”

It is important to apply these principles to the situation of current American law on abortion. Roe v. Wade is unjust; it is also the law of the land. Legislators cannot overturn that law. They can, however, “support proposals aimed at limiting the harm done by” that law, thereby “lessening its negative consequences at the level of general opinion and public morality.”

In the case of the partial-birth abortion ban, no pro-life supporter believes that the unborn child is any less alive at eight weeks than twenty weeks gestation. But this legislation does limit our federal abortion law, without admitting the legitimacy of any abortion. It also educates the public that late-term abortions are particularly cruel and brutal.

In addition to these benefits, fighting for regulatory legislation until the day that we can once again prohibit the abortion trade carries other advantages. It reduces the number of abortions. It helps organize the pro-life movement’s grass roots. It builds stronger and better pro-life legislators who can be future leaders. It distinguishes our friends from our adversaries and puts both in the spotlight.

When the limits on what is politically and constitutionally possible are disregarded, the passionate moral condemnation of “all or nothing” pro-life allies unnecessarily threatens the unity of the pro-life movement, reduces the pro-life movement to a carping sideshow, and strips it of any influence in American politics or culture.

With no political ability to achieve “all,” the movement is left with the alternative of doing nothing but shout from the sidelines-leaving it without the political resources to make the kind of progress that the attack on partial-birth abortion represents.

Clark D. Forsythe, an attorney, is President of Americans United for Life.