A Question of Strategy for Pro-Lifers: Part Two

Frank Pastore

10/11/2007 2:22:36 PM - Frank Pastore

Last week I wrote, “We in the pro-life movement have got a decision to make. If this were a football game, it would be the fourth quarter with one second on the clock. We, the Lifers, trail the Choicers by three points. We’re on their goal line. It’s fourth down. And, it’s the Super Bowl. Do we go for the field goal and the tie, in hopes of sending the game into overtime? Or, do we run a play and go for the touchdown and the win?”

Well, I’ve now made my decision. I’m going to kick the field goal because we’re not on their goal line—we’re on their 30-yard line. And, the smartest head coach in the country says we don’t even have a play that can get us into the end zone. We’ve got to kick.

In follow up to that column considering a Human Life Amendment, I spoke with perhaps the most knowledgeable and experienced pro-life attorney in the country, James Bopp, General Counsel with the National Right to Life. Here’s what he had to say:

Frank Pastore: As the General Counsel of the National Right to Life (nrlc.org), what about the strategy from the Thomas More Legal Center, passing or encouraging a Human Life Amendment, right now in Georgia, thanks to the Georgia Right to Life, and maybe fighting that all the way up to the Supreme Court? What do you think of that strategy and that approach?

James Bopp: Well, unfortunately, I think it could lead to a really unmitigated disaster for the pro-life movement. Five justices of the Supreme Court have already voted to reaffirm Roe v. Wade, and they are closed minded on that issue. And, if we push the Court by putting a prohibition up there things might actually get worse. Last term, the U.S. Supreme Court agreed to uphold the federal partial birth abortion bill. But, you’ve got to read the four-member dissent in that case, written by Justice Ginsberg, who is prepared to change the law radically on abortion to make it an absolute right to an abortion, by finding the right to an abortion as a matter of gender discrimination.

A number of state courts have, unfortunately, used that equal protection gender discrimination argument to strike down laws limiting funding of abortion, informed consent and parental notice. In other words, the theory that restrictions on abortion are essentially sexual discrimination means that all restrictions, all limits, including limits on funding of abortion would be struck down. And, we would push the Court into at least a four member plurality written by Justice Ginsberg that would say the matter of abortion is not a matter of privacy but a matter of gender discrimination which would then be used against all current limits on abortion.

Pastore: So the short answer from the National Right to Life is that it is not worth the risk right now.

Bopp: It is premature.

Pastore: It is premature in that we should wait for a more opportune time to go with a case to the Supreme Court to overturn Roe v. Wade?

Bopp: That’s right. And that losing is not cost free. In other words, losing at this time could be utterly devastating.

Pastore: How much success are we having right now with the current approach? What have we won so far? Why should we be satisfied with the status quo to some degree?

Bopp: Well, I’m not satisfied with the status quo, but what has happened over the last 30 years is that we have made a lot of progress. We have more people who have declared themselves as pro-life today than any time in our history. We have 30 percent fewer abortions today than we did at the height of abortion in America. We have no funding of abortion at the federal level and in many states. We have parental notice, informed consent and waiting periods in many states. Many states have clinic regulations. And, I think the Supreme Court is prepared to do more in terms of restrictions and limits on abortion.

But, just because we’re not satisfied with not having achieved the ultimate goal does not mean it is time to commit suicide. And unfortunately, when you have a Supreme Court that is not interested in any way to reverse Roe v. Wade, you risk a devastating defeat. This gender discrimination theory that Justice Ginsberg has been pushing since she was a law professor, which would incorporate the ERA, the Equal Rights Amendment, into the Constitution by Court decision, would mean all those restrictions and limits on abortion would go down the tube.

Pastore: But here’s a scenario: If Hillary wins, you’re talking at least four years, maybe eight years, she’s not going to appoint conservative justices, you’re going to get a whole bunch of Ruth Bader Ginsberg’s. So, it’s not as though the circumstances are going to get better for the National Right to Life. It’s going to get more difficult and worse in the federal courts, right?

Bopp: The five-member majority of the Supreme Court that upheld the federal partial birth abortion act are the youngest group of justices. The ones most likely to go in terms of age are three pro-abortion justices. If Hillary gets the opportunity to replace them, the situation doesn’t change. You replace three pro-aborts with three pro-aborts. Now, if a pro-life president gets elected and he replaces those pro-aborts with strict constructionists, then you can go for it. So, let’s concentrate on electing a pro-life president, not triggering a doomsday scenario.

Pastore: So, in your mind, there’s no chance for success for a Human Life Amendment out of the state of Georgia to go to the Supreme Court and get a favorable outcome?

Bopp: Absolutely no chance. That’s regrettable but true. We’ve got to face facts. We’ve got five justices who have already voted to reaffirm Roe v. Wade. There’s no indication whatsoever that they’ve had an epiphany. It’s not a problem of lack of clever legal arguments or anything like that. It’s a lack of will. Five members of the Supreme Court have simply decided to reaffirm Roe v. Wade, they have insisted on a right to an abortion, and there’s just no prospect for change of those justices.

Pastore: Jim, I want people to get a street-level understanding of what’s going on. Tell me, how many people and organizations does the National Right to Life represent?

Bopp: We have 50 state groups and 3,000 local chapters. In other words, we’re not a small group of lawyers in Ann Arbor Michigan. We are a representative group from the grass roots up and this is the considered judgment of thousands of chapters all through the United States.

Pastore: In your understanding, the Thomas More Law group is equivalent to one of those 3,000 chapters, correct?

Bopp: Well, not even a representative group, it is just a group of lawyers. They’re a wonderful group of guys, they’re smart lawyers and we’re really glad to have them on our team….

Pastore: So, if I liken this to a military metaphor, you’re the general saying, “Look, I’m responsible for the lives of all of my men and women in this war. If we risk this one assault, and I understand you’re really eager, it could end up costing the lives of tens of thousands of men and women. Now is not the prudent time to do what you’re suggesting, though I appreciate your courage and your willingness.”

Bopp: Of course. There have been many battles lost, wars lost, countries lost, because battles have been fought prematurely and imprudently. Our job for the unborn is to use judgment and prudence to do what is possible, not to risk it all on some risky strategy in which the only prospect for success is for divine intervention. God works on His time. Our job is to be prudent and use good judgment.

For more information, here’s the pdf of an excellent memorandum written by James Bopp that addresses how best to advance the pro-life cause right now, including an analysis of current efforts to prevent abortions through “personhood” amendments to state constitutions.