Some writers claim that efforts to change the legal status of abortion have not produced pro-life successes and thus should be abandoned. The arguments of the nay-sayers boil down to one of two claims. First, political and legislative efforts have failed because abortion is still legal. Second, these have failed because the law has not appreciably reduced the number of abortions.
Neither of these claims carries any water.
The first ignores the most important legal fact about abortion in the United States: it was declared to be a legal right by the US Supreme Court as a matter of interpreting the Constitution. Because the Constitution trumps ordinary federal statutes and any State laws, it will take the Supreme Court or an amendment to the Constitution to declare that abortion is no longer a legal right. To assert that political action has failed because elected officials have not outlawed abortion reflects a fundamental misunderstanding of the American legal system.
The second theme, that pro-life political and legislative efforts do not work because they have no effect on abortions, is simply false as a matter of fact. Such efforts have saved many hundreds of thousands of lives over the years, including not just unborn infants’ lives but women’s lives as well.
Probably the single most effective way to reduce the number of deaths by abortion has been to prohibit subsidizing abortions with tax money. The Hyde Amendment every year forbids Medicaid to pay for almost all types of abortions. After the Supreme Court ruled in 1979 that the government does not have to fund abortions, the Medicaid ban has had a dramatic effect. In a 2010 Congressional hearing, Douglas Johnson, of the National Right to Life Committee (NRLC), cited a 2010 National Abortion Rights Action League (NARAL) publication, as follows (readers should make allowances for the pro-abortion spin):
“A study by the Guttmacher Institute shows that Medicaid-eligible women in states that exclude abortion coverage have abortion rates of about half of those of women in states that fund abortion care. This suggests that the Hyde amendment forces about half the women who would otherwise choose abortion to carry unintended pregnancies to term and bear children against their wishes.”
The pro-abortion Guttmacher Institute’s numbers are sometimes unreliable. NRLC uses a more conservative estimate that an average of about one-fourth of the babies are brought to birth who otherwise would be killed by abortion if Medicaid subsidies were available. The result is that over one million human beings in America are now alive who would have been killed were it not for Congressman Henry Hyde’s successful fight to restrict Medicaid funding of abortions.
This is a very significant victory in the cause of human life. But it is only one of the victories that enacting pro-life laws has achieved.
Parental involvement laws, under which one or both of the parents of a teen-age mother must at least be notified of their daughter’s intent to undergo an abortion, have made a substantial dent in numbers of abortions performed on minors. One prominent researcher, Michael J. New, has found that 16 peer-reviewed scientific studies reflect significant drops in abortions within states that have enacted such laws. The average in-state drop is 15 to 20 percent. While it is clear that some young women cross state, they do not equal the in-state reduction in abortions. The net result is a decline in abortions. "[S]tate-level parental involvement laws are worth enacting because the in-state abortion decline consistently exceeds any out-of-state increase."
Dr New adds that "the knowledge that their parents will be involved with an abortion decision provides teen girls with a strong disincentive to engage in unprotected sexual activity. Indeed, there is a body of research on the positive public health effects associated with the presence of parental involvement laws." In regard to teenage women, such laws reduce the rates of pregnancy, not just the numbers of abortions; they reduce the gonorrhea rate; and they reduce the suicide rate. Thus, the lives of teenaged mothers-to-be are protected as well as the lives of unborn children.
The experience of my home state of Missouri illustrates how another kind of pro-life law saves the lives of women as well as unborn babies. For many years, we have seen far too many ambulances pull up to the doors of abortion clinics to take women to hospitals with injuries from legal abortions. But delays can occur when a new doctor must be summoned to admit the patient to the hospital. Surgical abortion is not like removing a wart. Women sometimes require emergency treatment and cannot wait to be admitted while a surgeon with privileges is called in.
In 2005, the Missouri General Assembly enacted a law that included many health regulations, including requiring abortion doctors to have privileges to admit patients to hospitals located within 30 miles of the clinics. It was quite telling that soon after the 2005 statute was enacted, the abortion clinic in the state’s third-largest city closed. Clearly, its board of directors realized that health regulations would be held constitutional and that they simply could not comply with them. As a result of the same law, the abortion clinic in Columbia, Missouri (home of the state’s largest college campus, the University of Missouri), has had to close its surgical abortion facility intermittently for months at a time in periods when it could not recruit a physician to do abortions in Columbia who had privileges at one of the two major hospitals available nearby.
Even before the 2005 law went into effect, Planned Parenthood in Kansas City moved its surgical abortions to another facility across the state line in Kansas. It is believed that the prospect of new Missouri regulations was one of the factors that led to the move. Finally, after a 2007 Missouri law held abortion clinics to the same health regulations as any other ambulatory surgical clinic, a suburban St Louis abortionist could not find a successor to take over his grisly business, so he shut down the abortion facility entirely when he retired in 2011. Because of enacting laws making abortionists comply with ordinary health regulations, Missouri now has only one regular surgical abortion clinic (St Louis) and a second clinic that operates only intermittently (Columbia). Women’s and babies’ lives are being saved.
Social science research bears out the effect across the country that the anecdotal evidence indicates in Missouri: abortion clinics cannot or will not comply with ordinary health and safety regulations and end up shutting their operations when such regulations are enacted. This results in a drop in abortions. Furthermore, additional reductions are seen after applying other abortion regulations, such as requirements to offer ultrasound images of unborn babies and to give particular information about human development and alternatives to abortion as part of informed consent.
Clearly, lives are being saved by state laws that regulate abortions.
A separate effect of the legislative process must be mentioned. The information about abortion that is disseminated during carefully-planned efforts to enact pro-life legislation sways public opinion. This became clear during the debates in the 1990s over partial birth abortion. Readers will recall that partial birth abortion involves partial delivery of the baby until only the head remains in the birth canal, then stabbing the back of the skull and killing the child before completing the delivery. (Philadelphia abortionist Kermit Gosnell was convicted of manslaughter this year because he did it an easier way by delivering the whole baby first, then killing the child.)
As an article in Slate magazine recognized, the information about partial birth abortion that was broadcast to American families during the Congressional debates on bills to ban this barbaric procedure resulted in a substantial shift in public opinion to the pro-life column.
Here we see how trying to change the law can change the culture. Those who assert that it has been futile to work on changing the law have failed to do their homework on the real-world successes of these efforts. The results summarized here provide strong support continuing political and legislative efforts to save the lives of women and unborn children.
James S. Cole is a graduate of Harvard Law School who practices law in St Louis, Missouri. This is the second article in a series. The first challenged the view that pro-lifers must change the culture before we can change the law.