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Once Again, Liberal Judges Energize the Right Over Abortion

Liberal judges have done it again: they’ve energized the right—in this case, the pro-life right.

On April 26, the Kansas Supreme Court ruled that the state’s constitution includes protections for abortion. Using trendy language that owes more to feminism than to legalism, the court opined that the Jayhawk State’s governing document, approved in 1859, allows a woman “to make her own decisions regarding her body…decisions that include whether to continue a pregnancy.”

In vain did the state’s attorney general, Derek Schmidt, point out that when the document was written, in the mid-19th century, abortion was illegal except to save a woman’s life. In other words, a century and a half ago, the drafters were fully aware of laws against abortion, and yet they proceeded with the constitution anyway, implicitly accepting—and most likely endorsing—the legal status quo. As Schmidt said later, the ruling “foreshadows an ever-expanding role for Kansas courts in public policy questions that for the first 158 years of state history were reserved for Kansans to settle through the democratic process.” (Rod Dreher’s appropriately impassioned look at the case is here.)

In other words, the Kansas ruling is a sort of mini-version of the U.S. Supreme Court’s Roe v. Wade decision—and will likely engender the same political dynamic, namely a backlash.

Back in 1973, Roe stirred up a political hornet’s nest. Yes, liberals in both parties were elated by the decision. Yet the politics were treacherous for the left.

There’s a simple enough political point here. If we can be permitted for the moment to put aside the ethical and humanitarian considerations of abortion, we can see that in political terms, the losing side of an issue is oftentimes more motivated to action than the winning side. The winners, after all, have won, and so they typically become complacent. In the meantime, the losers, still smoldering, resolve to get even.

This is doubly true if the victory is seen as the result of some sort of trick, including a legal trick. And that was certainly the case with the Roe decision, in which the court’s majority espied in the U.S. Constitution the right to an abortion in legal “penumbras,” penumbras that had gone unnoticed for the previous two centuries.

In the years right after Roe, as most law professors and reporters were high-fiving each other over their latest victory—and most politicians probably thought the issue had simply gone away—the grassroots were stirring, as pro-lifers realized that it was now or never for their cause.

Interestingly, the first state in which the Right to Life movement really made itself felt post-Roe was Kansas. In the 1974 midterm election, Republican Senator Bob Dole, seeking a second term, was in trouble because of his close association with the just-resigned Richard Nixon. Dole quickly pivoted away from Watergate and toward the life issue, recalling that his challenger, a medical doctor, had performed abortions. He won, and the Right to Life movement was established as a force.

To be sure, the victory in Kansas was just one state, and in fact, back in the mid-1970s, the Republican Party was muddled on abortion. The GOP had long been, after all, the party more disposed to eugenics and Planned Parenthood. The 1976 Republican national platform was mostly equivocal on the issue.

By contrast, the Democratic Party, the traditional home of Catholics, had long been anti-abortion. Indeed, it’s interesting to reflect that the famous Democratic liberals of the 20th century—from Woodrow Wilson to Franklin D. Roosevelt to John F. Kennedy—were all in effect pro-life, even if the issue never arose in national politics.

Of course, that submergence ended with with Roe. Now, suddenly, Democrats had to choose a side on abortion, mindful that their newer constituencies in academia and suburbia were pro-choice. Thus it was that in the ’70s and ’80s, leading Democrats—including Teddy Kennedy, Dick Gephardt, Jesse Jackson, and even Joe Biden—all reversed their earlier opposition to abortion.

Looking back on the net political impact of Roe over the last half-century, it’s hard to say which side has had the upper hand. In the ’80s, of course, the GOP won three presidential landslides with pro-life candidates. Yet in the seven national elections since 1992, Democrats have won four and Republicans have won three.

Indeed, national polling is similarly divided. According to Gallup, by an 11-point margin, 29 percent to 18 percent, more Americans think that abortion should be legal in all circumstances than illegal in all circumstances. And yet far away the largest group, 50 percent, think that abortion should be legal only under some circumstances. At the same time, Gallup also finds that 48 percent of Americans think of themselves as “pro-life,” while the exact same percentage, 48 percent, think of themselves as “pro-choice.”

In such an evenly balanced situation, any perturbation could disrupt the status quo—and that’s actually what has been happening in recent months. We can cite four disruptors.

First, there’s the Democrats’ push for legislation allowing ultra-late-term abortion, which seems to drift into the realm of infanticide. This issue came up in New York, where “reproductive rights” legislation became law, and in Virginia, where it did not. Yet still, the sense of overreach was palpable. If, as Gallup records, 68 percent (the 18 percent on the right of the issue, plus the 50 percent in the middle) of Americans want at least some restrictions on abortion, then blue states, going all out for “women’s health,” may be overplaying their hand.

Second, in other states where Republicans are stronger, there’s the push for “heartbeat” and “born alive” bills, which seek to increase protections for the unborn. In his own inimitable way, President Trump, a born-again Right to Lifer of some vehemence, laid out the issue. Speaking in Green Bay, Wisconsin, on Saturday, Trump told the multitude that Democratic Governor Tony Evers “shockingly stated that he will veto legislation that protects Wisconsin babies born alive.”

Then, broadening the point, Trump recalled the words of Virginia’s Democratic governor, Ralph Northam: “The baby is born. The mother meets with the doctor. They take care of the baby. They wrap the baby beautifully, and then the doctor and the mother determine whether or not they will execute the baby. I don’t think so.”

Critics, of course, protested Trump’s phraseology. But then, of course, they protest everything Trump says. The only thing that’s incontestable is that he has a way of punching through with his message.

Third, and speaking of making the abortion issue vivid and punching through, there’s the movie Unplanned. By indie film standards, the movie has been a hit at the box office, and yet its cultural throw weight is better measured in megatons. It seems safe to say that liberal critics don’t want anyone to see the movie; they want people to read what liberal critics have to say about it. And strangely enough, the algorithmic archons of social media don’t want to do the movie any favors either. Even so, Unplanned has persisted.

Fourth, and finally, we come to the new Kansas supreme court decision. For their part, Kansas Republicans have been decrying it, using words such as “abomination,” “barbaric,” and “moral degradation.” So will this sense of grievance pay off for the RTLers in 2020, as it has in the past? We’ll know in 18 months.

In the meantime, it’s interesting to note that the hierarchy of the Catholic Church, long the main engine of the pro-life movement, is now mostly on the sidelines. The institutional church, of course, has been badly weakened by sex scandals, and the current pope assigns more importance to other concerns, such as fighting climate change.

Still, the Right to Life movement soldiers on, as lay Catholics pick up the standard, greatly boosted in recent decades, of course, by Protestant evangelicals. Indeed, the movement also has its share of seculars: many are made pro-life just by looking at the face of a child, born or unborn.

James P. Pinkerton is an author and contributing editor at The American Conservative. He served as a White House policy aide to both Presidents Ronald Reagan and George H.W. Bush.

about the author

James P. Pinkerton is a contributor to the Fox News Channel and a regular panelist on the Fox “News Watch” show, the highest-rated media-critique show on television. He is a former columnist for Newsday, and is the editor of SeriousMedicineStrategy.org. He has written for publications ranging from The Wall Street Journal, The New York Times, The Washington Post, The Los Angeles Times, USA Today, National Review, The New Republic, Foreign Affairs, Fortune, The Huffington Post, and The Jerusalem Post. He is the author of What Comes Next: The End of Big Government--and the New Paradigm Ahead (Hyperion: 1995). He worked in the White House domestic policy offices of Presidents Ronald Reagan and George H.W. Bush and in the 1980, 1984, 1988 and 1992 presidential campaigns. In 2008 he served as a senior adviser to the Mike Huckabee for President Campaign. Married to the former Elizabeth Dial, he is a graduate of Stanford University.

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