A PROPOSAL ON ABORTION

Reprinted from The Wall Street Journal:

Why is it members of the so-called Christian Right are far more tolerant of the so-called Republican "moderates" than the moderates are of them? On the matter of abortion, the pro-life people have been willing to make accommodations even with pro-choice candidates who are not entirely hostile. But on the other side, Republicans such as Gov. William Weld have shown the most rigid refusal to accept even the slightest restrictions on abortion, at any time, for any reason.

In these columns recently, Paul Gigot identified me with a moderate measure that he was sure would make many pro-life activists uneasy: a proposal to restrict abortion the last three months of pregnancy. That position would easily command a consensus of the American public, even among people who call themselves "pro-choice."

But a number of pro-life organizations have been willing for a long while to support a measure even more modest than that, for the purpose of taking a first step. Three years ago, an alliance of pro-life groups (including Phyllis Schlafly's Eagle Forum and Gary Bauer's Family Research Council) came together in offering this proposal to our adversaries in Congress: Would they join us in a bill to protect life of the child who survives the abortion?

The measure reflected a political strategy that need not be concealed. Its purpose was to establish certain points in principle, and to break out information that would come us jolting news to most members of the public. Right now, it is not at all clear that the life of that child will be preserved once the mother has elected an abortion. In the only case that came close to the subject, a federal court held that there was no obligation to preserve a child who had survived for 20 days after an abortion.

And the reasoning of the court in that case is echoed even now by the most committed pro-choice advocates, like Laurence Tribe: The right to an abortion is the right to an "effective abortion" -- which is to say, a dead child. After all, if the pregnant woman could have countenance the prospect of giving up what was "hers," she would have arranged for the adoption of that child. But since she has made the judgment to abort the child, that decision should not be frustrated because the child happens to come out alive.

The proposal made by our coalition of pro-life groups, to protect the life of that child, would not affect more than a handful of cases each year, and so it would pose no threat to the massive volume of abortions performed each year. For us, the measure is but a first step in a scheme simply to establish certain points of principle -- in this case, that the claim of that child to the protection of the law does not pivot on the question of whether anyone happens to "want" her. Once planted, we think that principle would carry over readily to the child several days before birth, and we mean then to drive the argument to the next stage - to abortions in the third trimester of pregnancy, or to abortions done on children who are disabled -- and to continue, step by step, considering the reasoning in each case.

We would expect to have the public with us each step along the way. In one Gallup survey in 1990, 73 percent of the public favored a law that would prohibit abortions after the first three months of pregnancy; 69 percent favored restrictions on the use of abortion for the purpose of birth control. As one seasoned observer summed things up, about 60 percent of the public is opposed to about 90 percent of the abortions that are carried out under Roe v. Wade. And yet, most of the public in the same survey shows an unwillingness to overturn Roe.

This paradox can be readily explained now by the other evidence revealed in the surveys: that 80 percent of Americans do not have the faintest idea of what was established in Roe v. Wade. They do not know that under Rose, and its companion case, Doe v. Bolton, an abortion may be ordered throughout the entire length of pregnancy, for any reason; and that any restriction imposed by the law may be trumped by the pregnant woman if refusal to allow the abortion would cause her "distress."

Even people who described themselves as "pro-choice" are not generally in favor of this policy of unrestricted abortion on demand. The purpose of our measure is to convey the news to them, and do it not by preaching, but in the course of proposing a policy that most of them would readily support.

But these opinions of the public have had little chance to break through into the public discussion because the issue has been taken over by the courts, and removed from the arena of political discussion. In that arena, people may indeed deliberate about the conditions under which abortions are justified or unjustified. As the surveys reveal, the public is nowhere as divided as the commentators have been pleased to suggest. But before we can legislate, we need a conversation, to let the public discover the points of agreement that are already amply present. The aim of our proposal was to begin that conversation.

And what more reasonable way to start than to invite our adversaries to begin the conversation on their own ground? The partisans of "choice" earnestly proclaim that abortion is not infanticide. They imply that they are willing to protect a child at some point, even against parents who do not "want" her. We would simply invite them to tell us just where that point is, and we would be willing to begin there: Would it not at least be at birth?

Our own estimate, of course, is that the partisans of abortion could not take this modest first step without running the risk of having their whole position unravel; and we rather expect them to refuse. Still, it would be an instructive spectacle if Kate Michelman or Eleanor Smeal were obliged to go on "Nightline" and explain just why they could not agree to protect the child born alive.

But this modest proposal was also designed to meet a political need: to stem the panic among many Republican politicians, by giving them an anchoring point, something moderate and disarming, a place to begin in speaking about this issue.

At the same time, it would be hard to imagine Govs. Christie Whitman, William Weld, or Pete Wilson threatening to walk out of the Republican convention because the party determines to take the first, modest steps by protecting children who survive abortions. If the "moderate" Republicans find this too much to bear, then we ought to find that out as early as possible. But I cannot believe they would separate themselves from a party committed to such a moderate course. And in that event, the pending "crisis" over abortion in the Republican Party should be one of those looming events that never quite arrives.

Hadley Arkes is professor of jurisprudence and American institutions at Amherst College.