Muzzled (23 page)

Between 1973 and the late 1980s the Supreme Court’s persistent defense of the underlying premise of the
Roe
ruling—that a woman’s right to make a private decision on having an abortion was protected by the Constitution—led abortion opponents to shift tactics. Instead of focusing on efforts to force the Court to look at a variety of state restrictions, the anti-abortion movement concentrated on changing the makeup of the Court. The goal was to seat judges opposed to abortion while opposing any judge who supported protections for abortion. President Reagan had long promised to nominate judges who opposed abortion, and he had successfully nominated three associate justices of the court, Sandra Day O’Connor, the first woman to sit on the high court; Anthony Kennedy; and Antonin Scalia. Foes of abortion rights expected these justices to be ready to support them in future cases limiting or upending the
Roe
decision. But there was uncertainty when another Republican president, George H. W. Bush, who had been vice president under President Reagan, successfully nominated David Souter to the Court. President Bush had given all necessary reassurances to abortion opponents when he ran for office. But throughout his career he had never been a leading voice of opposition to abortion. President Bush’s White House, like President Reagan’s, claimed to have no abortion litmus test for its nominees. But among the leaders of the movement to stop abortion the assumption was that the Republican presidents had been privately assured that their nominees planned to shift the balance of the Court majority and weaken if not
reverse Roe. The moment for change in the Court’s handling of abortion seemed to be in place, because Souter took the seat of a leading liberal and abortion supporter, William Brennan.

Associate Justice Souter was seated in time for the next abortion case,
Planned Parenthood v. Casey
. In a surprise to most of the country, he joined with O’Connor and Kennedy in a plurality decision that upheld
Roe
but also clarified the right of states to regulate a variety of abortion procedures so long as the rules did not place an “undue burden” on a woman’s right to choose. Opponents of abortion were livid.

The Republican orthodoxy requiring opposition to abortion was matched by the Democrats’ orthodoxy requiring support for abortion rights. During the 1992 Democratic National Convention, the governor of Pennsylvania, Bob Casey, was denied the chance to address the delegates because he planned to speak in opposition to abortion. The
New York Times
later reported that the governor of one of the nation’s largest states was “not permitted on camera for fear that his sour note on abortion would disturb the symphony of [convention] unity.” The governor was incensed and took personal offense at buttons sold at the convention that depicted him, a Catholic, as the pope. “To me, it was simply a case of anti-Catholic bigotry,” he later wrote. “What was going on here? What had become of the Democratic Party I once knew?”

President Clinton helped to quiet the debate over abortion during the midnineties with his position that abortion should be “safe, legal and rare.” Even when Republicans won control of the House of Representatives in 1994, they did not focus on ending abortion as part of the “contract with America.” But in the 2000 campaign for the Republican nomination
the issue returned with political punch. Two staunch opponents of abortion, Gary Bauer and Steve Forbes, ran for the nomination. Texas governor George W. Bush announced his support for a constitutional amendment banning abortion except in cases of rape or incest or when the mother’s life was in danger. He used his standing as a “born-again” Christian and his opposition to abortion to distinguish himself from his biggest challenger, Arizona senator John McCain. Bush enlisted antiabortion groups such as the National Right to Life Committee to run advertisements portraying McCain as wavering on abortion.

Abortion stayed in the news that year when another case, a challenge to a Nebraska ban on partial-birth abortion, was struck down by the Supreme Court, in
Stenberg v. Carhart
, as an attempt to criminalize abortion in violation of both the
Roe
and
Casey
decisions. After Bush narrowly won the presidency, he spoke of promoting a “culture of life,” and in 2003 he acted on his pledged opposition to abortion by signing a ban on partial-birth abortions, a law that would eventually be upheld in 2007 by a newly conservative majority on the Supreme Court. Meanwhile, abortion opponents pressured the president to name people to the high court who could be counted on to limit if not overturn
Roe
. Pat Robertson, who had made banning abortion a central message of his nationally televised evangelical programs, blasted the justices for allowing abortion. Robertson launched “Operation Supreme Court Freedom” in 2005 as a prayer project for all Christians to ask God to replace the current justices of the Supreme Court with “righteous judges.” Robertson embraced a new tactic in which judges who disagreed with him on abortion rights found
themselves charged with ignoring the Constitution and “legislating from the bench.” In one televised prayer he asked God for more vacancies on the Supreme Court, “that we might see people who respect the Constitution and who respect the fundamental law of the land.… Lord, give us righteous judges who will not try to legislate and dominate this society. Take control, Lord!”

Reverend Robertson got his wish when President Bush got two strong conservatives, both Catholics, on the Supreme Court, including the new chief justice, John Roberts. By the end of President Bush’s second term, the conservative majority made up of Roberts, Sam Alito, Antonin Scalia, Anthony Kennedy, and Clarence Thomas all were practicing Catholics. This is the Supreme Court that upheld President Bush’s ban on partial-birth abortion.

In the 2008 election Senator McCain, the Republican nominee, tried to attack Democrat Barack Obama as a man with “poor judgment” on social issues, beginning with his association with 1960s radicals and his left-wing Chicago minister, Reverend Jeremiah Wright. When the Supreme Court’s ban on partial-birth abortion was decided in 2007, then-senator and presidential candidate Obama tried to stay out of the bitter fight while quietly expressing his views: “I think that most Americans recognize that this is a profoundly difficult issue for the women and [the] families who make these decisions. They don’t make them casually. And I trust women to make these decisions in conjunction with their doctors and their families and their clergy. And I think that is where most Americans are.”

With Senator Obama’s clear statement of support for abortion
rights, McCain did not have to worry about losing antiabortion voters to the Democrat. But McCain’s campaign wanted to use Obama’s support for abortion to weaken his standing with moderate voters. They wanted to introduce doubt and raise questions about whether he was too left-wing to be trusted to handle a range of social issues, from stem-cell research to gay rights. The
New York Times
reported that McCain’s talk about Obama’s “poor judgment” was also “code” to suggest the Democrat was likely to appoint “liberal, activist judges.” The Democrat’s response was to avoid speaking directly about abortion. As for the kind of judges he was likely to put on the federal courts and the Supreme Court, Obama cast himself as concerned with delivering justice to all. “What I do want is a judge who is sympathetic enough to those who are on the outside, those who are vulnerable, those who are powerless, those who can’t have access to political power and as a consequence can’t protect themselves from being—from being dealt with sometimes unfairly, that the courts become a refuge for justice.”

Candidate Obama’s goal, as a senator with a very liberal voting record and the first African American to win his party’s presidential nomination, was to avoid any statements that allowed opponents to paint him as radical and out of the mainstream. He definitely did not want to get involved with blunt, provocative stands on abortion when it was to his advantage to focus on Republican responsibility for the economic crisis and two controversial wars. Even when he ran for the Democratic nomination and had to reassure the party’s base of his support for abortion, he similarly avoided making direct statements, preferring thoughtful expressions about the issue that
he hoped would appeal to moderates. “When you describe a specific procedure that accounts for less than 1 percent of the abortions that take place, then naturally, people get concerned,” he said regarding partial-birth abortion, “and I think legitimately so. But the broader issue here is: Do women have the right to make these profoundly difficult decisions? And I trust them to do it.”

Shortly after President Obama took office, the abortion debate flared up again. A doctor who performed late-term abortions in Kansas, George Tiller, was shot through his eye and killed at his church in Wichita. Tiller became the eighth abortion doctor killed by antiabortion advocates in the last twenty years. In addition, several abortion clinics had been bombed. The president condemned the violence, especially the shooting, but deferred on offering any new arguments in support of legal abortion. The détente that the Tiller killing brought about between abortion and antiabortion activists was quickly scrapped as the health-care reform debate heated up. The concern was whether health-care reform might allow for coverage of abortions. Some old allies in the campaign to end legal abortion found themselves at odds.

“One of the most prominent voices in the anti-abortion movement,”
U.S. News & World Report
wrote, “… has carved out a much different position in the healthcare debate. The U.S. Conference of Catholic Bishops, while fiercely opposed to abortion rights, has lobbied for decades for universal healthcare coverage as a fundamental right. ‘We think the right to have basic healthcare is corollary to the right to life,’ says Richard Doerflinger, associate director of the Secretariat for Pro-Life Activities at the bishops’ conference, which represents the Roman
Catholic Church’s roughly 270 American bishops. ‘And that society has some obligation to help provide it.’ ”

The Catholic Church’s position—opposing abortion while supporting health care—put Democrats in the position of wanting to separate the issue to benefit from the power of church backing for the president’s top legislative priority. Congressman Bart Stupak, a conservative Democrat from Michigan who opposed government funding of abortion, refused to commit to support the health-care bill unless it included a ban on paying for abortions through health insurance exchanges set up by the government to provide insurance coverage. President Obama eventually signed an executive order banning abortion payments under the health-care reform plan. But that compromise did not satisfy a vituperative, antiabortion Republican, Representative Randy Neugebauer, who, as mentioned earlier, damned Representative Stupak as a “baby killer.” That blasphemy stands as the epitome of the kind of horrid, lowball personal attack that makes rational discussion about abortion nearly impossible. Presidents ranging from Obama to George W. Bush largely stay out of the debate beyond perfunctory nods to the appropriate side given their party affiliation. But leaving the debate to the crazies means the crazies lead on the issue, and on abortion their destination, time and again, is more accusations and arguments. There are no winners here.

Even after the health-care reform bill passed, the bitterness continued to boil. In the 2010 midterm elections Republicans won back control of the House of Representatives and gained control of several state legislatures, largely due to voter concern over high unemployment and government spending. But
with Republicans back in power in Congress and twenty-nine governors, almost all Republicans, opposing abortion (instead of the twenty-one who had before the election), there was an immediate shift from economic discussions to the reliably divisive abortion issue. In Congress the Republicans tried to make the Hyde Amendment permanent. And in statehouses some 350 bills were introduced to restrict abortion. “The lawmakers are drafting … bills that would ban most abortions at 20 weeks after conception, push women considering abortion to view a live ultrasound of the fetus, or curb insurance coverage, among other proposals,” reported the
New York Times
. In addition, the Catholic Church called attention to new data indicating that the nation’s biggest city, New York, had twice the national average of abortions. New York archbishop Timothy Dolan called the finding that 40 percent of all pregnancies in the city ended in abortion “chilling” and urged city leaders to pass more laws limiting the right to abortion.

But the key to further debate is not the religious beliefs of opponents and proponents. As much as the religious Right may try to make it a religious issue, the debate can never be settled by trying to impose constraints on the dialogue through religious doctrine. Any one set of beliefs tied to one church is never going to be accepted by every American because America, while heavily Christian, has always been a nation of varied denominations with a range of beliefs. A faith-based debate is not in the spirit of the separation of church and state, which remains at the core of the American belief in secular governance. Even more to the point, there is never going to be a consensus based on an effort to abolish abortion rights. No matter anyone’s opinion, abortion is far too common, and
has been for decades, to reasonably expect it to be effectively removed from American life.

To the casual observer the American people appear incapable of moving past the abortion divide. But the reality is that many political parties, lobbying organizations, and zealots don’t want to give up the issue. Their strategy is all about a desire to keep the conversation locked in failure.

Abortion is a premium “wedge” issue for producing money and votes. The base of the discussion is presented as a matter of differing religious values. And clashes come fast and with sharp edges when religion is introduced into America’s public sphere. There should be a big fight because, again, one of the country’s founding principles is the separation of church and state. And don’t be fooled by people who claim the words in the Constitution say that it is “freedom of religion,” not “freedom from religion.” The attempt to make such a distinction is a common refrain from religious advocates who complain about the country losing its basic religious values and becoming too secular. That thinking leads to a hard-line split between “heathens” and “fundamentalists,” as each side is harshly depicted by its opponents. It is no surprise that this antagonism takes center stage come major national elections. Political strategists use these debates to excite their base voters, pro or con, but also as a form of negative advertising to attack the character of opposing candidates. American presidential campaigns have increasingly become contests in which voters pick a candidate based on which one most closely shares their values. And like clockwork the political debates come down to competing religious perspectives. And as a result, a great deal of debate on any issue with a values or religious
angle immediately is reduced to fearmongering and demonization. That is the regrettable situation with high-profile debates on the leading wedge issues of our time—abortion, gay rights, gay marriage, and teaching evolution in school, as well as government-funded celebrations of Christmas. They all fit into the same fixed pattern of debate with the same prescribed divisions being held in place by the gravity of big money and the power to excite voters. And they all orbit around the same attempts to force religious beliefs into public-policy debates.