A shrewd analysis of how pro-lifers are hemming in Roe on the way to its extinction

By Dave Andrusko

When  you read articles by pro-abortionists such as “How the Anti-Abortion Movement Used the Progressive Playbook to Chip Away at Roe v. Wade,” your first thought (or at least my first thought) is that likely the authors will suggest that the usage is somehow illegitimate. Tainted, as it were. How could those people (aka us) be allowed to get away with using (as the subhead states) “The tactics that advanced civil rights and gay rights have been put to work against abortion.”

But Profs. Mary Ziegler and Robert L. Tsai give every appearance of having a kind of grudging admiration for the genius of our Movement–incrementalism—perhaps because that was at the core of the successful “multi-decade strategy” employed by the civil rights and gay rights movements. (In the case of the former, the beginning of the “strategy” goes back over a hundred years.)

However to jump ahead to the very end of their essay in Politico Magazine, I confess I also anticipated a stronger explanation of why they believe the wheel will turn again. That is, why pro-life successes, including a potential victory in the Mississippi case the Supreme Court has agreed to hear, will spark a “backlash that ultimately writes abortion rights into black-letter law.”

I would strongly encourage you read the piece, so allow me to highlight four considerations.

#1.  Ziegler and Tsai understand that the Supreme Court both makes changes and reflects them. They go into depth in many areas but not about what may be the most telling. Courtesy of ultrasounds in particular, pictures/representations of the one-time largely invisible unborn child are on refrigerator doors, in albums, and in tons of advertisements. “Fetus” always was a clunky term, but hearing it now  is to be reminded of the squeal chalk makes as it skips across a chalkboard. They are, far more often than not, “unborn child” or “your baby.”

#2. In a particularly insightful paragraph, Ziegler and Tsai maintain

In a campaign to shift the scope of constitutional rights, marrying a social movement to formal power is always a critical step. Nineteenth-century anti-slavery activism and 20th- century anti-segregation efforts were grounded in churches and civic groups, but truly took off once their goals were incorporated into the reform agenda of a major political party. So too anti-abortion activism has been sustained by a potent union with the modern GOP.

Which is true—absolutely true.  In both cases—slavery and abortion—the Democrats were solidly on the other side: pro-slavery and pro-abortion. It’s not as if abolitionists or pro-lifers necessarily preferred one party over the over. But Democrats were wedded to these shameful practices and did everything possible to shore up slavery and abortion.

#3. They write

Anti-abortion forces have employed the exact same strategy by convincing legislatures to enact laws that reject the assumptions and values contained in Roe. In the 1980s, anti-abortion leaders focused on the idea of establishing “fetal personhood” as a national norm, pushing for fetal protection well outside the abortion context: in homicide laws, personal injury law, even child abuse law. These efforts proved remarkably successful: 38 states now treat an unborn child as a person in non-abortion homicide cases. 

Which, if you think about, is both profoundly practical and deeply insightful.  In the abortion context, we are rolling back the absurd notion that the unborn is a nothing. Simultaneously we are busy on every other non-abortion front to establish that the little ones are somebodies.

There is legal schizophrenia to be sure but that merely heightens the tension. A man can and will be punished for killing a woman’s unborn child in the midst of a crime committed against her. But that same child—that same exact child—has zero rights in the abortion context? 

#4. Each legal challenge to prevailing abortion jurisprudence—even when it has failed—ultimately has compelled the Justices to trim back the absolute right to abortion. Abortion on demand –the very results Harry Blackmun and Chief Justice Warren Burger insisted Roe did not usher in—had, in fact, arrived on the same train in a different car: Doe v. Bolton. 

We understand both the legal and ethical incongruities and the soft underbelly of the “right” to abortion. Ziegler and Tsai write

By flooding the field of action with abortion restrictions based on different standards over the years, abortion opponents have forced courts to wrestle with difficult and often murky medical questions, and given judges with more favorable ideological leanings maximal opportunities to revisit legal rules and frameworks

One other consideration very much worth mentioning. Roe never made any sense, which is why wiser pro-abortionists have long sought a backstop—an alternative foundation. 

As Ziegler and Tsai observe, that other possible footing is “characterizing abortion rights as a matter of sex equality.” That is patently absurd but some courts have bought it hook, line, and sinker and is why pro-abortionists, like Dr. Frankenstein, are desperately trying to bring the pro-abortion ERA monster back from the dead.

Take a few minutes and read their piece.