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FIRST-PERSON: Winning the abortion battle

DALLAS (BP)–There are many good reasons to believe that 2006 will be a positive year in the abortion war.

Thirty-three years ago this Sunday, the majority of Supreme Court justices probably thought they were ending the battle over abortion when the court announced the Roe v. Wade decision. But, instead, Roe was the catalyst for a major escalation in a rift that goes to the core of the culture. Current Supreme Court Justice Ruth Bader Ginsburg was correct when she said the decision “appears to have provoked, not resolved, conflict.” This war has two fronts: the courts and public opinion. On both, there’s reason for optimism.

Concern over the ultimate fate of Roe was the underlying theme of the confirmation hearings for Supreme Court nominee Samuel Alito. Senate Judiciary Committee Chairman Arlen Specter didn’t waste any time in attempting to discern Judge Alito’s thoughts on the importance of precedent, arguing that Roe has been upheld 38 times. Judge Alito was respectful but non-committal. Liberals’ emphasis on precedent reveals their fear that an Alito confirmation will mean they can no longer take comfort in Justice Sandra Day O’Connor’s increasingly reliable support for abortion rights.

But precedent is by no means invincible. On day four of the hearings, Kansas Senator Sam Brownback explained to his colleagues that the Supreme Court is under no obligation to prolong what he termed “error with tenure.” He pointed out that the court has reversed precedent, even precedent that had been reaffirmed multiple times, when it became obvious that it was wrong. He cited Plessy v. Ferguson, the 1896 decision that upheld laws mandating racial segregation. Plessy was reaffirmed by the court eight times before being overturned in the 1954 Brown v. Board of Education decision.

Brownback also quoted several liberal scholars to counter the idea that the Roe decision represents serious constitutional reasoning. Chief Justice Harry Blackmun wrote the majority opinion in the case. His former clerk, Edward Lazarus, later described the decision, saying, “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible.” And Harvard Professor Laurence Tribe wrote that Roe rests, not on “substantive judgment,” but on a “verbal smokescreen.”

Legislative victories in this war include common sense restrictions on abortion clinics, protections for religious facilities that refuse to perform or refer for abortions, and requirements for waiting periods and parental notification and/or consent for minors seeking abortions. Sometimes courts nullify these victories — but with Bush appointees populating the federal bench, things are looking up on that front. Plus, the Supreme Court is likely to hear a challenge to the federal law banning partial-birth abortion with Alito sitting in Justice O’Connor’s place. O’Connor provided the swing vote in the Supreme Court’s 2000 decision striking down Nebraska’s ban on the procedure.

Early in this war, the pro-abortion side gained the advantage in the battle over public opinion. “Abortion rights” advocates were able to frame the debate by equating the unpopular notion of abortion with the very attractive notion of choice. Feminists made a woman’s “right to choose” the centerpiece of their agenda, piggybacking it on gains the women’s movement’s was making in the areas of education and employment. But, over the years, feminists’ emphasis on abortion has radicalized feminism. And the pro-life side has cast new light on the word choice, showing American women that good choices are informed choices that take into consideration the alternatives to abortion and the possible consequences to their own physical and emotional health. The development of sonography to the point where a woman can see her unborn child, in up to four dimensions, now undermines Planned Parenthood’s line that a fetus is “just a blob of tissue.”

Although polls show a majority of Americans still believe Roe v. Wade should be upheld, Americans do not endorse what Roe guarantees: abortion on demand through all nine months of pregnancy. A large majority of the public supports the various restrictions on abortion. And the nation’s high school students are trending pro-life. A national poll conducted by Hamilton College in connection with the Zogby firm surveyed 1000 high school seniors and found that 72 percent of females graduating in 2006 would not consider an abortion if they became pregnant.

Pro-lifers have exhibited incredible perseverance in their attempts to restrict and eventually outlaw abortion. These efforts are bearing fruit. The courts are changing. These developments make it likely that we will win the abortion war.
Dexter is a conservative activist and an announcer on the new syndicated radio program “Life on the Line” (information available at www.lifeontheline.com). She currently serves as a consultant for KMA Direct Communications in Plano, Texas, and as a producer for “Washington Watch Weekly,” a broadcast of the Family Research Council. She formerly was a co-host of Marlin Maddoux’s “Point of View” syndicated radio program.

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  • Penna Dexter