Couldn't post yesterday, which was almost a blessing because I wouldn't have known where to start if I did. This blog is deliberately non-newsy, focused more on underlying histories and trends in the conservative movement, with some running commentary on the GOP horse race thrown in. But sometimes the news is impossible to ignore.
The ruling is a good indication pro-lifers would do well to continue this strategy of incrementalism in the future.In New's analysis, the incremental strategy succeeds because it allows the the anti-choice movement to establish fresh narratives drawn from the margins of the abortion debate, where public opinion is less settled and therefore more susceptible to the "pro-life" line. It's a sort of bait-and-switch approach, which seeks to center unusual procedures like "partial birth abortion" as the symbolic face of the debate: defining the norm according to the extreme.
Indeed Wednesday’s decision was made possible by pro-lifers whose hard work resulted in a Congress, a president, and a Judiciary who were all supportive of the partial-birth-abortion ban. This decision builds on the Casey v. Planned Parenthood decision, argued almost exactly 15 years ago. Casey strengthened constitutional protection for public-funding bans, parental-involvement laws, waiting periods, and informed-consent laws. The Supreme Court’s decision on Wednesday extends constitutional protection to yet another piece of pro-life legislation.
[I]ncremental legislation often serves an important informational purpose. Many people pay little attention to politics and are unaware of the permissive polices the United States has regarding abortion. Many do not know that in many states a minor can obtain an abortion with out her parents’ knowledge. Furthermore, many do not know that a woman can obtain a legal abortion during her ninth month of pregnancy. As such, it is undeniable that the national campaign to end partial-birth abortion gained a considerable amount of publicity and was effective in moving the general public toward a more pro-life direction.As New observes, the incremental strategy has only recently achieved a degree of consensus among anti-choicers:
While this may seem relatively uncontroversial in pro-life circles today, the battle between incrementalists and purists at one point was extremely divisive. Many pro-lifers are too young to remember the bitter battles within the pro-life movement during the late 1970s and the early 1980s about the best way to design a human-life amendment.This is the other trend lurking within the movement; it has been manifested in moments of overreach like the South Dakota abortion ban and even the failed attempt to impose forced sonography in South Carolina. The incremental approach requires a great deal of discipline - all the more so, one would think, as it begins to succeed. With each victory, anti-choice extremists will be tempted to see the endgame on the horizon, and to break ranks in pursuit of it. This, as New seems to realize, threatens to undo the movement altogether. "The pro-life movement would do well to remain united," he argues, pointing out that in a broad sense abortion rights have gained durable public support since Roe. It remains unrealistic for anti-choicers to anticipate overturning that consensus - but they can keep chipping away at the margins, through "parental-involvement laws, waiting periods, and informed-consent laws." In this analysis, things are going the anti-abortion movement's way, but only if they don't go too far.
Now by the mid 1980s most pro-lifers realized that a constitutional amendment was not a realistic short term political goal. As such, the strategy of most pro-life groups shifted toward changing the Supreme Court. This enjoyed somewhat broader support and tensions cooled somewhat. However, it is possible that a reversal of Roe v. Wade could reignite these tensions. Legislators may be called to dismiss incremental legislation in favor of politically infeasible laws that would eliminate abortion entirely.
Americans now have the green light to enact state partial-birth bans modeled on the federal ban. Legislatures should also pursue more robust informed-consent rules on, for example, ultrasound imaging and fetal pain.In contrast to New, who seemed to focus on gradually changing the terms of the debate and actually trying to reduce the number of abortions (however mistaken his analysis), Whelan seems to see an opportunity to regulate abortion out of existence. Licking his chops at the prospects of "further improvements in the court's makeup," Whelan sounds very much like one of those reluctant incrementalists who, having had a taste of blood, is anxious to surge forward - discipline be damned.
Not only did the Court not overrule its Roe and Casey decisions, it didn't even overrule Stenberg v. Carhart, the 2000 decision that overturned a Nebraska law banning partial-birth abortion. Instead, Justice Anthony Kennedy upheld the 2003 Congressional ban because he said it was more narrowly drawn. "The Act makes the distinction the Nebraska statute failed to draw," he wrote, "by differentiating between the overall partial-birth abortion and the distinct overt act that kills the fetus."What this does represent, to the Journal's editors, is a chance to debate an abortion-related issue in state legislatures. The issue itself might be a narrow one, but it's a sort of rehearsal for the large-scale shift that "respectable" conservatives want to achieve: by overturning Roe and Casey, they intend to make abortion policy a question for state politicians to decide. You have to admire how neatly this dovetails with the entire conservative history of disingenuous federalism: we all know by now what support for "state's rights" really says about one's opinion on civil rights.
Justice Kennedy had been a dissenter in Stenberg, so changing his position would have been a little too protean even for him. The fact that he wasn't willing to overturn even Stenberg suggests that this Court is not in the mood for sweeping reversals of precedent. As for Messrs. Roberts and Alito, the Court's opinion also gives no clue about how many abortion precedents they might be willing to overturn. The Court has shown a very modest new deference to the will of the voters on abortion, but no more.