THE DEVELOPMENT OF A RELATIVE VIEW OF FETAL RIGHTS

The relative view of fetal rights that dominated American thinking after the mid-twentieth century was at odds with the state abortion laws that had been in force for the previous hundred years. These laws, which prohibited abortion in most circumstances, were based on an understanding of fetal life that developed in the nineteenth century, when doctors, aided by new medical evidence derived from the study of fetuses, reached an understanding that human life began at conception and that abortion should therefore be prohibited even at the earliest stages of pregnancy. Almost all of the laws still allowed for abortion when a doctor believed it was necessary to save a woman’s life, a situation that was not uncommon in an era before safe cesarean sections. And many women whose lives were not in danger found sympathetic doctors or unlicensed practitioners who were willing to give them abortions not sanctioned by law. But even if abortion laws were sometimes honored as much in the breach as in the observance, there was almost no public debate in the first three decades of the twentieth century about the laws themselves, because there was a societal consensus that abortion was morally wrong and that fetal life should be protected.Footnote ⁴

The first major challenge to the national consensus on abortion law came when a few doctors in the 1930s suggested that the law should assign a relative, rather than absolute, value to fetal life. These early advocates of liberalized abortion laws were well aware of the biology of fetal development, and they showed little interest in challenging the claim that human life began at conception. Indeed, one of the first major public advocates of abortion law liberalization, Frederick J. Taussig, professor of obstetrics and gynecology at Washington University in St. Louis, had been a prominent opponent of abortion three decades earlier, and had given public lectures featuring slides of fetuses in order to convince women not to abort. By the 1930s, he had changed his mind. His new argument for the liberalization of abortion law suggested that even though the fetus was fully human, its right to life was only relative, not absolute. The value of fetal life had to be balanced against larger social considerations.Footnote ⁵

The birth control campaign of the previous decade had convinced most younger, upper-middle-class Protestants that controlled limitation of fertility was a socially desirable thing. While most proponents of birth control did not believe at the time that abortion was justifiable, the early advocates of abortion liberalization viewed their campaign as a way to extend the benefits of contraception for those who had not been able to prevent an unwanted pregnancy before conception. The eugenics campaigns of the 1920s had convinced many educated people that proper measures should be taken to ensure that the “unfit” did not reproduce. Physicians were therefore increasingly inclined to perform abortions when they suspected severe fetal damage; it was better to abort what they called a “monster” rather than bring it into the world, where it would be a burden on a family and a drain on societal resources. Some physicians also believed that it was not fair to require an impoverished woman—of whom there were many during the depression—to give birth to an unwanted child whom she did not have the resources to support. Such a child would likely grow up to become a ward of the state or a criminal, so abortion in such a case would be a benefit to society.Footnote ⁶

Physicians such as Taussig also looked to the recent experiment of Prohibition, widely viewed as a failure by the mid-1930s, as evidence that moral regulation did not always work. With estimates of the annual number of illegal abortions ranging from 200,000 to 2 million, and with doctors in hospitals frequently stretching the limits of the law by performing “therapeutic” abortions in cases in which a woman’s life was not at risk, Taussig thought that it was time to revise the legal code. “I know of no other instance in history in which there has been such frank and universal disregard for a criminal law,” Taussig wrote. Although abortion was morally problematic, a rigid abortion law that encouraged thousands of women to risk their lives each year at the hands of unskilled, criminal abortionists was even worse, he argued. Why not save women’s lives by allowing them to abort in safe, sanitary facilities instead of leaving them to perish at the hands of back-alley butchers?Footnote ⁷

While Taussig’s utilitarian argument appealed to some secular doctors, it did not gain any traction at the time among Christian clergy, observant Jews, or other religious Americans. In 1930, the Anglican Communion adopted a resolution condemning abortion. That same year, Pope Pius XI reiterated the Catholic Church’s teaching against abortion in the encyclical Casti Connubii.Footnote ⁸ Taussig’s views were at odds with both Protestants’ and Catholics’ understanding of the sacred value of unborn life. Yet even Taussig was not prepared to argue for abortion-on-demand. He did not suggest that women should have an unrestricted right to terminate their pregnancies, but only that considerations of societal and personal well-being should trump whatever right to life the fetus might ordinarily have.

The limited campaign for abortion rights in the 1930s led to a backlash from pro-life Catholics, who publicly expressed their objections to the social planning and relativistic view of human life that formed the backdrop for the campaign for abortion legalization. The willingness of many physicians to grant abortions for “therapeutic” reasons also disturbed even some non-Catholics. In cities across the nation, local law-enforcement agencies escalated their efforts to shut down illegal abortion clinics and threatened to prosecute hospital physicians who performed “therapeutic” abortions that went beyond a strict interpretation of the law. In order to reduce the risk of prosecution that might result from an individual doctor’s decision to perform an abortion, hospitals formed abortion committees whose permission was required before doctors could terminate a pregnancy. These committees often interpreted the law much more strictly than individual doctors did.Footnote ⁹

In reaction to the new rigid enforcement of state abortion policies, some physicians in the postwar era renewed their call for a change in the law. This time, they were joined by some of the directors of Planned Parenthood, which convened a conference in 1955 to discuss abortion law liberalization, and the American Law Institute (ALI), which created a “model abortion law” in 1959 that it urged state legislatures to adopt. The law should allow for abortions in cases of rape, incest, and fetal deformity in addition to permitting the procedure when a pregnancy would “gravely impair the physical or mental health of the mother,” ALI declared.Footnote ¹⁰

By the 1950s, advocates of revising abortion laws could look to other countries for a model of how to balance fetal rights against the rights of a woman and the larger society. Sweden and Denmark adopted laws in the late 1930s that were very similar to the ALI model in allowing for abortion when pregnancy threatened a woman’s mental health. While the United Kingdom did not revise its abortion law until 1967, a judicial decision in Rex v. Bourne (1938) effectively brought British abortion practice closer to the Scandinavian model. Rex v. Bourne declared that a physician arrested for performing an abortion on a fourteen-year-old rape victim had not committed a crime, even though British law allowed for abortions only in cases in which a woman’s life was in danger. The physician had protected the girl’s mental health by granting her an abortion, the judge declared, and because health was connected to life, he had indirectly acted “for the purpose of preserving the life of the woman,” thus satisfying the technicalities of the law.Footnote ¹¹

Abortion rights advocates in the United States seized upon Rex v. Bourne as a model for a new way of thinking about the preservation of life. Life was about more than mere existence, they declared, and the necessity of preserving the life of the mother required physicians to take account of her mental and physical health, considerations that might well justify abortions in cases of rape, incest, or even fetal defects. One of the leading proponents of liberalized abortion laws in the United States, Planned Parenthood director Alan F. Guttmacher, conceded in 1961 that abortion might constitute the taking of a human life, but that in extreme circumstances, such as rape, the preservation of a woman’s health, and a family’s socioeconomic concerns, it was justified on the grounds of preserving the mother’s “life.” “I don’t like killing,” Guttmacher stated in a public lecture in 1961. “I don’t like to do abortions, but many of you people probably fought in World War II and killed because you wanted to preserve something more important. I think a mother’s life is more important than a fetus.”Footnote ¹²

Protestant clergy were unprepared to argue against this relative view of fetal life because they were reluctant to oppose medical opinion and had long accepted the idea that the fetus’s rights were subordinate to those of the woman in cases in which her physical life was in danger. In 1958, Anglicans adopted a resolution allowing abortion “at the dictate of strict and undeniable medical necessity.” In 1961, the National Council of Churches passed a resolution approving of abortion when the “health or life of the mother is at stake.” That same year, The Christian Century published an editorial that went even further by calling for the legalization of abortion in cases of rape or incest. The nation’s current abortion laws, the magazine declared, “destroy physical and psychic health and menace life itself.” Yet The Christian Century also insisted that it did not favor abortion-on-demand; the fetus’s rights must be recognized, even if those rights were subordinate to those of a woman whose health was threatened. “Few doctors and few responsible people outside the medical profession would argue that all restraints should be lifted or that pregnancies should be interrupted because of some married mother’s whim or some unmarried mother’s shame or fear,” The Christian Century stated. “The limits of legalized abortion should be drawn by the mutual agreement of the law, medicine and the church.”Footnote ¹³

A dramatic 1962 case demonstrated that many Protestants were also willing to allow for abortion in cases of suspected fetal deformity. When Sherri Chessen Finkbine, hostess of a Phoenix children’s television show, secured an abortion in Sweden in order to avoid giving birth to a Thalidomide-deformed infant, the Arizona Episcopal bishop declared that her action was “proper under these circumstances,” and the world medical director of the Seventh-Day Adventist Church likewise endorsed the decision. The public expressed similar sentiments. When a Gallup poll one month after Finkbine’s abortion asked whether she “did the right thing or the wrong thing in having this abortion operation,” 52 percent of the public said that she “did the right thing.”Footnote ¹⁴

Catholic pro-life advocates framed the abortion debate as a human rights issue grounded in unchanging, nonsectarian natural law. However, because Catholic leaders were almost the only voices in the public square decrying abortion, it was easy for abortion rights advocates to portray their campaign as a religiously sectarian fight that had no place in American politics. From the 1920s through the early 1960s, Catholic clergy fought against the legalization of birth control, a campaign that they finally lost in 1965, when the Supreme Court overturned Connecticut’s restrictive law against birth control in Griswold v. Connecticut. Having lost its campaign on that issue, it was difficult for the Catholic Church to remain credible on the issue of abortion, which many Americans placed in the same category. The Church’s opposition to all abortions, including those necessary to save a woman’s life, was well outside mainstream Protestant opinion in the 1960s.Footnote ¹⁵

Catholic prelates were well aware that the birth control controversy had exacerbated the difficulties they faced in winning Protestants to their position on abortion, and they were also aware that they needed Protestant allies in order to defend against a wave of abortion law liberalization. They quickly disbanded their campaigns against birth control legalization, which they now viewed as quixotic. When it came to birth control, “Catholics do not need the support of civil law to be faithful to their own religious convictions and they do not seek to impose by law their moral views on other members of society,” Richard Cardinal Cushing, archbishop of Boston, declared in 1966. But abortion was another matter. It was “unthinkable that organized society . . . would countenance the killing of an innocent unborn child,” Cushing said. Father James McHugh, director of the U.S. Catholic Conference’s Family Life Bureau, likewise insisted on the distinction between contraception and abortion, and argued that the Church needed to launch an all-out, ecumenical campaign to prevent the legalization of the latter. For that campaign to succeed, Protestants would have to be recruited to the cause, even if they did not fully agree with the Church’s absolute prohibition of abortion in all circumstances. “Efforts should be made to obtain non-Catholic participation,” McHugh instructed American bishops in 1967. “If non-Catholics will not totally oppose liberalization [of state abortion laws], the door should be kept open to join on those aspects of a bill that are unacceptable to all groups.”Footnote ¹⁶

Despite their overtures, Catholics found it difficult to convince Protestants to join the pro-life cause in the 1960s. The concerns that had led some doctors of the previous generation to advocate for the liberalization of abortion laws—concerns, that is, about overpopulation, fetal deformities, the dangers of illegal abortion, and poverty—had only become more acute. Abortion rights advocates routinely pointed out that illegal abortion was the third largest criminal industry; prohibition clearly had not succeeded in deterring the practice. Overpopulation was an even greater public anxiety in the late 1960s than it had been thirty years earlier, due in part to a worldwide baby boom, whose allegedly ill effects were the focus of Paul Ehrlich’s Malthusian bestseller, The Population Bomb (1968). President Lyndon Johnson’s social programs, along with the rights conscious movements of the 1960s, had increased Americans’ awareness of the social problems resulting from poverty. The civil rights movement had opened the eyes of white Americans to the prevalence of racial and economic discrimination, and abortion rights advocates saw evidence of both in existing abortion law. Upper-class women could manipulate hospital abortion committees to obtain abortions, they argued, while poor women were forced to resort to dangerous “back-alley” procedures. An emerging sexual revolution had convinced many people that unless there was an accompanying rise in the use of birth control—and possibly abortion—unwanted pregnancies would only continue to increase, and society would suffer as a result.Footnote ¹⁷

Abortion rights advocates also added a new argument: the child itself would suffer as a result of being brought into the world unwanted. By defining the “right to life” as the right to a certain quality of life, rather than the right to mere existence, abortion rights advocates were able to argue that they, rather than their opponents, were the true guardians of the “sanctity of life.” In some cases, the most humane action was not to permit a fetus to live. “We need tremendously to educate ourselves to our duty not to bring new infants in the world except under healthy and wholesome and loving conditions,” Felix Danford Lion, a California Unitarian minister, declared in 1967. “‘Every baby a wanted baby’ might well be our watchword.” Abortion rights advocate Lawrence Lader echoed this concern: “The right to abortion is the foundation of Society’s long struggle to guarantee that every child comes into this world wanted, loved, and cared for,” he wrote.Footnote ¹⁸

Public opinion polls in the mid-1960s indicated that most Americans valued fetal life but were willing to allow for abortions in exceptional cases. According to a Gallup poll taken in January 1966, 77 percent of Americans believed that abortion should be legal when the “health of the mother is in danger,” and 54 percent supported legalizing it in cases in which “the child may be born deformed.” Yet Americans were still far from countenancing abortion-on-demand. Only 18 percent said that abortion should be legal when “the family does not have enough money to support another child.”Footnote ¹⁹

The earliest abortion liberalization bills gained the public support needed for passage because they matched prevailing Protestant opinion on the issue. They allowed for abortion in exceptional cases but stopped short of legitimizing abortion-on-demand. In recognition that society had an interest in defending fetal life, the laws gave the final say over whether an abortion could be performed to a hospital committee rather than to the woman involved. Catholic clergy strongly opposed these early abortion liberalization bills, and in a number of heavily Catholic states, including Massachusetts, Connecticut, and Pennsylvania, they succeeded in preventing their passage. But several other states, especially those in southern or western regions where Catholics lacked political influence, faced few obstacles in liberalizing their abortion laws, provided that the bills matched prevailing public sentiment by allowing for abortions only in cases in which most Americans considered the procedure justifiable. In 1967, Colorado legalized abortion in cases of rape and incest, protection of a mother’s health, and suspected fetal deformity. California passed a slightly more conservative abortion liberalization bill the same year. North Carolina likewise adopted a liberalized abortion bill that sailed through the state senate by a vote of 46 to 7. In 1968, Georgia and Maryland passed liberalized abortion bills. By the end of 1970, fourteen states (none of which were in the heavily Catholic areas of New England or the industrial Midwest) allowed for abortion in limited circumstances—usually rape and incest, dangers to a woman’s physical and mental health, or suspected fetal deformity.Footnote ²⁰ Nearly all of these laws fit within the framework that the American Law Institute had outlined nine years earlier. And all met with widespread public approval at first, at least among most Protestants. Both the liberal Protestant periodical Christian Century and the conservative evangelical magazine Christianity Today expressed their approval of limited liberalization of abortion laws in the late 1960s, though both publications balked at legalization of abortion-on-demand.Footnote ²¹

THE CONTROVERSY OVER ABORTION-ON-DEMAND

The national conversation about abortion changed at the end of the 1960s when it became increasingly obvious that liberalized abortion bills would not solve the problems they were expected to address. The proponents of abortion reform bills had promised that legislation that allowed for abortion in cases of rape or dangers to a woman’s health would not only be more humane, but would also address problems of overpopulation and unwanted children and, above all, would reduce the number of dangerous illegal abortions. But these laws, if narrowly interpreted, could never do that, because most unplanned pregnancies did not result from rape and most women who obtained illegal abortions did not do so because pregnancy posed a direct threat to their health.

Abortion rights advocates decided that the only way to drive the underground abortion industry out of business and allow doctors to be fully open about their practices was to remove all legal restrictions on abortions, at least in the first trimester, if not throughout the entire duration of pregnancy. Alan Guttmacher, who had said for years that he could never imagine the public accepting abortion-on-demand, decided in 1968 to endorse a call for the legalization of all abortions, believing that it was the “only civilized way to handle the problem.” By 1968, several local abortion rights organizations had begun calling for the outright repeal of existing abortion laws, and in 1969 the newly created National Association for the Repeal of Abortion Laws (NARAL) did the same. By 1969, 51 percent of American physicians supported the legalization of abortion-on-demand. By 1970, several of the state legislators who had led the charge for liberalized abortion laws in their states only a few years earlier decided that the problem of illegal abortion could be ended only through the removal of all legal restrictions that barred women’s access to the procedure. Demands for legalization of abortion-on-demand also came from proponents of the sexual revolution, such as Playboy founder Hugh Hefner and Cosmopolitan editor Helen Gurley Brown. Many liberals argued that legalized abortion would help to alleviate the problems of overpopulation and pollution. In several state legislative debates, a few conservatives also joined the call for legalization of abortion-on-demand because of their belief that greater availability of legal abortion would reduce welfare costs.Footnote ²²

The most vocal advocates of abortion legalization were feminists who argued that women had an absolute right to abortion because they had a right to control their own bodies and their own fertility. In 1967, the National Organization for Women (NOW) passed a resolution calling for the repeal of all restrictions on abortion. Not all women’s rights advocates agreed with this measure, and its passage led to a fissure within NOW and the creation of a rival feminist group, the Women’s Equity Action League, which took a more conservative position on reproductive rights. Nevertheless, after 1967, the demand for abortion rights became an integral part of the feminist movement, as feminists argued that as long as women were forced to carry a pregnancy to term, they could never attain equality with men.Footnote ²³

To make the argument that women should have an unrestricted right to abortion, the abortion rights movement began denying the humanity of the fetus and insisting that “personhood” began only with birth. This was not the argument that abortion rights advocates had made in the early 1960s, but it was the one that many of the women’s rights advocates who entered the movement in the late 1960s insisted upon. While they conceded that the fetus was clearly biologically alive, that fact counted for little when trying to determine the point at which personhood began. “We all agree that there is life in the uterus before birth, but there is also life in the ovum before conception,” a representative of a Massachusetts chapter of the National Organization for Women said in 1972 while testifying before the state legislature in support of legalized abortion. “The uterus itself is living tissue. It should be clearly understood that we are not debating when life begins and certainly, I hope, we are not debating any religious concepts of ensoulment. . . .We have always celebrated personhood from the moment of birth.” A California philosophy professor agreed. “It’s because, I think, of our so-called Christian background that we have the idea that somehow or other this is murder,” he stated at an abortion rights conference. “We have to make it quite clear that we are removing something perhaps more akin at that stage to a cancer or some other cellular growth, rather than a tiny little human being.”Footnote ²⁴

Some state legislatures accepted these arguments. In February 1970, Hawaii became the first state to legalize abortion-on-demand, and it did so because a legislative committee entrusted with the study of the subject decided that the question of when human personhood began was a philosophical and religious matter, not an issue for politicians to determine. The problem of illegal abortions and abortion-related deaths, the legislative committee declared, could be solved only by allowing abortion-on-demand; compared to that issue, the question of the personhood of the fetus seemed less compelling.Footnote ²⁵ Two months later, New York followed with a similar law, which it adopted for similar reasons. By the end of the year, Alaska and Washington had also legalized abortion-on-demand.

Yet while these laws promised to solve the issue of illegal abortions, they quickly became enormously controversial and provoked a public backlash. Between the end of 1970 and the announcement of the Supreme Court’s decision in Roe v. Wade at the beginning of 1973, no state legalized abortion-on-demand, and only one state (Florida) passed an ALI-style law legalizing “therapeutic” abortion, which it did only because of a court mandate. Abortion rights advocates wondered what had happened. They blamed the Catholic Church and right-to-life activists for their sudden loss of traction, and there was some truth in both charges.Footnote ²⁶ But they failed to realize that they also faced a more fundamental problem—widespread public opposition to abortion policies that gave no consideration to fetal rights. Many Americans who did not accept Catholic natural-law arguments about the beginning of life, and who were willing to accept abortion in some circumstances, were nevertheless repelled by a movement that seemed to assume that fetuses had no rights whatsoever.

Evangelical Protestants who had not objected to the legalization of “therapeutic” abortion in the late 1960s decided in the early 1970s that abortion-on-demand went too far. In 1970, the year in which the first abortion-on-demand laws were passed, Christianity Today signaled its shift toward a stronger pro-life position with an editorial titled, “The War on the Womb.” “Abortion on simple demand,” the editorial declared, “when it involves no mitigating circumstances except inconvenience . . . is murder.” The next year, one of Christianity Today’s editors, Billy Graham’s father-in-law, Dr. L. Nelson Bell, admitted that as a physician he had performed a few abortions in the past and that he still believed that there were cases when abortion was “necessary,” but he said that he was now ready to join the fight against abortion-on-demand because he believed that the fetus was a “human life.” One of the nation’s leading evangelical theologians, Carl F. H. Henry, likewise published a strong condemnation of abortion in 1971, suggesting that it was allowable only in cases of rape and an imminent threat to a mother’s life. Although evangelicals were not yet ready to join the Catholic campaign to ban all abortions, they were sufficiently uncomfortable with abortion-on-demand to begin moving closer to the pro-life camp.Footnote ²⁷

By 1971, even liberalized abortion laws had become politically contentious, primarily because pro-life activists argued that liberalized abortion bills were gateway measures for abortion-on-demand. At least twenty-five state legislatures debated abortion legalization or liberalization proposals in the spring of 1971, but pro-life forces defeated all of these bills. Pro-lifers experienced similar victories in 1972, when they defeated referenda to legalize abortion in North Dakota and Michigan. In North Dakota, they did so partly by relying on the argument that if North Dakotans voted to loosen restrictions on abortion, their state would soon turn into an “abortion mill,” just as New York had. In Michigan, polls showed strong public support for abortion legalization until pro-life organizations mounted an advertising campaign that focused on images of twenty-week-old fetuses. Giving women the unrestricted right to end the life of twenty-week-old fetuses went too far, a majority of voters seemed to believe.Footnote ²⁸

National politicians decided that it was advisable to back away from support for abortion legalization. In 1972, Democratic presidential candidate George McGovern, who had once publicly stated his support for abortion rights, soft-pedaled that stance during his presidential campaign and insisted that he would leave abortion legalization up to the states. To the disappointment of some of his feminist supporters, his campaign insisted that abortion rights would not be part of the Democratic Party platform because he considered it a losing issue. Some of President Richard Nixon’s advisers were convinced that the president could pick up support among Catholics by taking a stronger stance against abortion. Accordingly, the administration, which had issued a policy permitting abortion on military bases in 1970, backtracked in 1972 and came out against New York’s liberal abortion law. Even in New York, residents of the state became so uncomfortable with abortion that in 1972 the state legislature passed a bill repealing the law that had legalized abortion-on-demand two years earlier. Only Governor Nelson Rockefeller’s veto prevented the state from making abortion illegal once again.Footnote ²⁹

For the moment, at least, it appeared that abortion rights proponents had miscalculated by pushing abortion-on-demand, which the public apparently was not ready to accept. Robert Webber, the director of Planned Parenthood’s Western Region chapter, worried that even in California, where doctors were performing 160,000 legal abortions per year by 1972, abortion might soon be made illegal once again. He was “seeing Catholics solidify and giving up birth control, along with more effective fundamental Protestant support and cooperation with the Catholic position,” he wrote in July 1972. A string of defeats, along with the near-repeal of New York’s abortion law, led many pro-choice advocates, including Webber, to fear the worst. “In the West we view ’73 as a difficult year for abortion,” he wrote.Footnote ³⁰

THE REACTION AGAINST ROE V. WADE

The Supreme Court’s unexpectedly broad ruling in Roe v. Wade interrupted the pro-life movement’s string of legislative successes and changed the political calculus of the abortion issue. At the time of the decision, only four states had abortion laws that met the Court’s criteria for constitutionality. The decision therefore required a sweeping revision of state abortion laws across the nation. Even more alarming for the pro-life movement was the Court’s perceived cavalier dismissal of questions of fetal personhood. A fetus was not a “person” under the terms of the Fourteenth Amendment, the Court stated, and a woman’s right to privacy therefore gave her an unrestricted right to an abortion during the first trimester of pregnancy and a mostly unrestricted right in the second trimester.Footnote ³¹

The Court’s decision fell to the left of prevailing public opinion. Throughout the late 1960s and early 1970s, public opinion polls consistently showed that a majority of Americans thought that medical reasons justified an abortion, but they were much more ambivalent about giving women the right to have an abortion on demand. If a doctor recommended an abortion for health reasons, they supported it, but if a woman requested one simply because she did not want to be pregnant, they often opposed it. This thinking continued well after Roe. In 1974, only 46 percent of Americans said that they supported Roe. Subsequent polls showed a slight decline in support for the Court’s decision.Footnote ³²

When forced to revise their state laws to comply with Roe, a few state legislatures refused to do so. Rhode Island responded to the Court decision by passing a strong antiabortion bill declaring that life began at conception. As expected, a federal court immediately ruled the law unconstitutional, at which point Rhode Island passed another restrictive bill that prohibited the abortion of viable fetuses except when necessary to save a woman’s life. That bill likewise failed to meet the approval of the district court. Utah responded to Roe with a law stating that “no abortion may be performed in this state unless, in the best clinical judgment of the pregnant woman’s attending physician, there are sufficient medical reasons therefore.” As expected, this law did not survive court scrutiny. The Supreme Court also struck down state parental and spousal consent laws, measures that several states had employed to provide a check on abortion-on-demand and challenge the view that a woman had an unrestricted right to an abortion.Footnote ³³

While most Americans continued to stake out a middle-of-the-road position on abortion, opposing abortion-on-demand while countenancing the procedure in some circumstances, the Supreme Court’s imposition of abortion-on-demand hardened the lines of opposition and prompted those in the right-to-life movement who had been willing to allow for abortion in extreme cases to unite around support for a constitutional amendment that would protect human life from the moment of conception. Evangelicals began taking more conservative positions on the abortion issue because they saw that Roe had allowed for far more legal abortions than they believed were appropriate. Although evangelicals had not joined the Catholic-led campaign against abortion law liberalization in the late 1960s, they began mobilizing on behalf of the pro-life cause in the 1970s because they viewed the legalization of abortion-on-demand as a product of the worst excesses of the sexual revolution and the feminist movement. The Supreme Court’s refusal to take fetal rights into consideration and to legalize the “murder” of unborn children was a sign, they thought, of the secular state’s rejection of God. Prompted by exhortations from the popular theologian Francis Schaeffer, evangelicals made opposition to abortion the flagship cause in their campaign to restore public morality in the nation in the late 1970s and 1980s. The Southern Baptist Convention, which had endorsed the liberalization of state abortion laws in 1971, passed a strong pro-life resolution in 1980 and began observing an annual “Human Life Sunday” in 1986. Among Catholics, abortion became the defining political issue for the Church, and it was the primary reason why the Catholic hierarchy shifted its support from Democratic to Republican politicians.Footnote ³⁴

Yet when the pro-life movement attempted to make its absolutist views on abortion the standard for public law, the public balked. Pro-life constitutional amendment proposals received little support in Congress, partly because pro-choice advocates charged that if life were protected from the moment of conception, birth-control pills and intrauterine devices would be illegal, as well as all abortions. Since most Americans, according to public opinion polls, took a relative view of fetal rights, an absolutist position that might ban popular forms of birth control in addition to abortion in cases of medical necessity held little appeal for them. After the early 1980s, when Congress voted against a proposed constitutional amendment that would have rescinded Roe v. Wade and returned abortion policy to the states, most pro-life leaders realized that they had no chance of securing an antiabortion constitutional amendment, and they shifted their attention to reshaping the federal judiciary in order to secure a reversal of Roe. When the Supreme Court reiterated its support for the core principles of Roe in Planned Parenthood v. Casey (1992), pro-lifers became pessimistic about their chances of a court victory in the immediate future, and they turned their attention to restricting abortion through modest legislative curbs on particular abortion procedures, such as late-term abortions.Footnote ³⁵

Their efforts met with mixed results. By capitalizing on the public’s discomfort with partial-birth abortion, a late-term abortion procedure that 70 percent of Americans opposed, pro-lifers were able to win congressional support for the nation’s first federal ban on an abortion procedure. President George W. Bush signed into law the Partial-Birth Abortion Ban Act of 2003, and four years later it survived a court challenge when the Supreme Court upheld its constitutionality in Gonzales v. Carhart (2007). Yet this victory was probably more symbolic than substantive, since it restricted only a rarely used procedure and had almost no effect on the nation’s abortion rate. It was also soon followed by other defeats. When pro-lifers in Mississippi placed a human personhood amendment on the ballot in 2011, voters rejected it because they feared that a declaration that human life began at conception would prohibit abortion in cases of extreme health risks and might also ban some popular forms of contraception and in vitro fertilization.Footnote ³⁶ When pro-life legislators in Virginia attempted in early 2012 to make a transvaginal ultrasound a precondition for abortion, privacy advocates balked, and pro-lifers were forced to agree to a compromise that moderated this requirement. Pro-lifers were particularly upset by the mandate of the U.S. Department of Health and Human Services in early 2012 that required employers to provide health insurance coverage for contraceptives for women, including coverage for abortion-inducing drugs.

Pro-lifers’ mixed success in recent years has followed a familiar pattern. For decades, pro-lifers have been able to win public support for measures that conform to the American public’s belief that at least some forms of abortion should remain legal, even if they are uncomfortable with abortion-on-demand. Thus, pro-lifers have long been able to win public support for funding restrictions on abortion because a majority of Americans object to the idea that taxpayers should be required to pay for someone else’s choice to have an abortion at will. Pro-lifers have also won public support for parental notification laws, because a majority of Americans believe that a family should be involved in a minor’s decision to have an abortion, and that girls under the age of eighteen should not make that decision alone. But pro-lifers have not succeeded in convincing the public that abortion should be restricted in cases of rape or other extreme circumstances, so voters have resisted attempts to ban abortion altogether. Nor have pro-lifers convinced the public that human life in its embryonic or early fetal stage is worthy of the same protection that a late-term fetus might deserve. In the early twenty-first century, many people who favored a ban on partial-birth abortion simultaneously expressed strong support for embryonic stem-cell research.Footnote ³⁷

After nearly fifty years of hearing absolutist arguments on both sides of the controversy, the rights that most Americans want to assign to the fetus are still relative, rather than absolute. Most Americans want to see neither an absolute prohibition on abortion nor a complete disregard for fetal rights. This middle-of-the-road approach enabled abortion to become legal and widely accepted in America—but simultaneously it ensured that most Americans would continue to be uneasy with the results of their nation’s abortion laws.