When pro-life advocates woke up the morning of Nov. 7, they surveyed the electoral landscape and found themselves pretty much where they were before.
On one hand, the Senate will continue to have a pro-abortion majority, pro-abortion Democratic President Barack Obama was re-elected, and statements by Republican Senate candidates in Indiana and Missouri about abortion and rape may have derailed their campaigns and stopped pro-lifers from gaining ground in the Senate.
Pro-lifers and religious leaders will continue to oppose the Department of Health and Human Services mandate that requires the vast majority of employers who offer health insurance to offer contraceptives — including those that may cause early abortions — and sterilization at no additional cost.
On the other hand, pro-life representatives will remain the majority in the U.S. House of Representatives, and the momentum toward increasingly restrictive state laws on abortion is rolling along.
Hope in the states
Clarke Forsythe, executive director of Americans United for Life, said his organization will continue to press for state laws such as those requiring women to have ultrasounds before having abortions and banning nearly all abortions after 20 weeks gestation.
Voters in several states had the opportunity to protect life and conscience rights in ballot initiatives.
Alabama, Montana and Wyoming: Voted for amendments stating citizens will not be forced to participate in health care exchanges, protecting freedom of conscience of individuals and employers.
Massachusetts: Defeated a measure that would have legalized assisted suicide.
Missouri: Supported a measure prohibiting establishment of health care exchanges.
Montana: Voted to require parental notification before abortion for minors 15 and younger.
Florida: Defeated an amendment that would have prohibited state funding of abortion.
Source: Americans United for Life
The states traditionally had control of abortion laws until the U.S. Supreme Court’s Roe v. Wade decision in 1973, and the states in many ways are more hospitable to pro-life legislation.
“There are 50 states,” Forsythe said. “If New York and California don’t want to do something, many other states can. The climate is very favorable in some states even if it isn’t in others.”
He cited an Associated Press story saying that 41 states have passed laws making it more difficult to get abortions in the last two years.
He sees less opportunity for progress on the federal front, with a divided Congress and a president who seems hostile to many pro-life issues.
“President Obama has made it very clear he won’t allow legislation that would restrict abortion,” Forsythe told Our Sunday Visitor. “He’s trying to do the opposite — expand access and funding. The main threat now is massive federal funding of abortion through Obamacare, which will be implemented next year if not before. What’s more of a threat is what the president does through executive orders, without going through the legislative process.”
Pro-life members of the House of Representatives will focus on ameliorating what they see as the most egregious parts of the Affordable Care Act, commonly known as Obamacare.
Several such measures, including the No Taxpayer Funding for Abortion (HR 3) and and the Protect Life (HR 358) bills, won House support in the last Congress, but died in the Senate.
The Health and Human Services Mandate, Forsythe noted, was issued by the executive branch, with no legislative review.
Overall, the balance of pro-life and pro-abortion vote in the Senate seems to be pretty much what it was, even if the partisan balance tilted a bit more toward the Democrats, said Richard Doerflinger, associate director for pro-life activities for the U.S. Conference of Catholic Bishops. Republican Sen. Olympia Snowe, from Maine, did not run for re-election. She will be replaced by independent Angus King, whose views aren’t as clear. On the other hand, Indiana Democrat Joe Donnelly, who often voted with pro-life advocates in the House of Representatives, won a Senate seat from Indiana.
Donnelly defeated Republican Richard Mourdock, whose statement that a new life resulting from rape is the will of God drew strong criticism.
Missouri Republican Todd Akin, who said that “legitimate rape” rarely leads to pregnancy, was defeated by the incumbent, pro-abortion Democratic Sen. Claire McCaskill.
Marjorie Dannenfelser, president of the Susan B. Anthony List, said the problem was that most Republican candidates simply ceded social issues to the Democrats, not that the country opposed pro-life positions.
“Has the pro-life issue in any way been repudiated? Well, absolutely not. I’ve been asked that question already three times this morning,” Dannenfelser said Nov. 7 in a speech at the National Press Club.“You cannot win a war which is not engaged. Your issue cannot be repudiated if no one has ever heard it,” she said. “And that is exactly what happened on the national level and that is exactly why so many votes were left on the table that should not have been. This cannot happen again.”One difficulty presented by the divided Congress is to find a way to bring legislation through the entire process, Doerflinger said. At this point, the Senate leadership is simply refusing to consider most pro-life legislation.
“The challenge will be to get the Senate to take up those legislative proposals at all,” he told OSV.
In some cases, it could be done by attaching provisions to “must pass” bills, such as appropriations bills. However, Congress has yet to pass appropriations bills for the current fiscal year, and it may not, Doerflinger said.
“That’s too bad, because the appropriations bills for health and human services and labor actually had very good language on the HHS mandate,” he said.
Indeed, up until recent years, religious freedom of the sort impinged upon by the HHS mandate had received wide bipartisan support.
That seems to have evaporated in recent years, Doerflinger said, “and that’s been very troubling. It seems to be, ‘It’s pro-abortion as long as it’s my choice.’”
Watching the court
Forsythe said pro-lifers believe they have a solid majority that will uphold abortion restrictions on the Supreme Court in Justices Anthony Kennedy, John Roberts, Antonin Scalia, Samuel Alito and Clarence Thomas.
“I think this majority will uphold any regulation or partial prohibition that makes medical sense,” Forsythe said. “If the president replaces one of them, the balance of power will shift dramatically.”
The court as it stands also does not seem prepared to take a step — or maybe several steps — further and overturn Roe v. Wade, Doerflinger said.
Justices Scalia and Kennedy are both 75; Justice Ruth Bader Ginsburg, who generally votes with the liberals on the court, is the oldest justice at 78.
If any of the justices retires, the bishops’ conference will watch nomination proceedings with interest, but it almost certainly will not advocate for or against any particular nominees, Doerflinger said.
While the conference’s tax-exempt status means that it is forbidden from supporting or opposing any candidates for elective office, the conference’s own internal rules prohibit it from weighing in on appointed offices as well.
Reasons for optimism
But Doerflinger cautioned against being too pessimistic. General attitudes toward abortion have taken a more pro-life turn in the past 15 years or so, and Doerflinger said he thinks that started during President Bill Clinton’s administration, when Congress passed a partial-birth abortion ban in 1995 and Clinton vetoed it.
Even though the bill did not become law, the discussion educated many, many Americans about the cruelty of partial-birth abortion and swung public opinion against the procedure.
President George W. Bush signed a law prohibiting partial birth abortion in 2003, and it was upheld by the Supreme Court in 2009.
What’s more, the Blunt Amendment — which would have added a conscience clause to the HHS mandate — won 48 votes in the Senate last year. It’s not so far from 48 to 51 votes, he said.
“God works in his own ways,” Doerflinger told OSV.
Michelle Martin writes from Illinois.