FROM: The quandary of pro-life free speech: a lesson from the abolitionists
The Effects of Roe on Women and Families
By declaring that the right to abortion is constitutionally ordained to be exclusively a woman's private decision, the
Supreme Court in Roe endorsed the debasing, sexist notion that reproductive matters are really only women's "private" concerns.
The subtext is that real men do not care about procreation, posterity, and mutuality in procreative and childbearing/rearing
responsibilities. The Court, in essence, raised to constitutional status the age-old response of predatory men to the women
whom they have sexually exploited for sexual gratification: "Oh, it is your problem. You take care of it!" That is the core
message of the Supreme Court's doctrine of abortion privacy. The Supreme Court has abandoned women to their "privacy" and
has essentially told them: "It is your private problem, you deal with it privately, and do not bother the public. You cannot
look to the state for support in requiring the male to assume any procreative responsibility by forbidding him the option
of pressuring you into a cheap and potentially deadly quickfix."
Is it any wonder that the male political leaders who have been most supportive of the ethics and policy of Roe v. Wade,
like Senator Edward Kennedy, Senator Robert Packwood, and President William Jefferson Clinton, are the same leaders embroiled
in sleazy scandals involving sexual exploitation of women? Is not the connection between viewing women as sexual playthings,
and abortion-on-demand obvious? Roe mandates that states not interfere with the lifestyle that allows women to be sexually
exploited, to be "rid" of the inconvenient pregnancy that may result from such behavior, and thus to liberate the woman for
farther sterile, sexual exploitation. It liberates such men from the unglamourous responsibilities of concern, mutuality,
connectedness, caring, procreation, child support, and child-rearing.(595) Is it any wonder that among the most common reasons
given by women for having an abortion is lack of support, or opposition from (essentially fear of losing or preventing a relationship
with), the sexual partner who fathered the unborn child?(596) Has Roe really empowered and protected women, or has it just
made them more vulnerable to the manipulations of selfish, sexually predatory men?
Roe isolates pregnant women in exquisitely empty privacy. Under circumstances when mutuality is needed more than ever before,
when joint procreative responsibility is most important, the Court has mandated that all laws in all states conform to a judicially-created
model of procreative relationships that is divisive, centrifugal, and turgidly individualistic. Pregnant women are on their
own. Fathers cannot be protected in their role as jointly responsible parents. States cannot preserve the right of husbands
to even be notified of what may be the most important decision controlling his interests in, and hopes of, posterity. Roe
and its progeny impose upon the nation a new model of family relations in which mutuality is not to be expected and in which
procreation and child-rearing must be treated as inferior, disfavored roles and unwanted burdens. The Roe-model of procreative
privacy "kills human relationships as efficiently as [abortion] kills unborn children."(597)
Roe has forced women to engage in a costly pretense that "abortion makes whatever hurts them feel better."(598) With all
the resources we have to improve the contexts of women's lives, the Court mandates that the states offer them legalized abortion.
Does Roe really empower women and protect their autonomy or does it, as Catharine MacKinnon has pointed out, protect the
doctor's autonomy just as much as the woman's?(599) Does Roe provide women with the illusion of control but really expose
them to greater manipulation from sexually irresponsible men? Does Roe liberate women or bind women in the shadows of male
sexual promiscuity? Does Roe benefit women or protect selfish male sexual predators?
Just when women were finally getting some political clout, the Supreme Court slammed the door to the statehouse in their
faces by unilaterally decreeing in Roe that states could not support pregnant women in resisting the pressure of their male
partners to "get rid of it."(600) Roe enshrined in the Constitution a particular ideology of sex and procreation that is hostile
to one set of women and the men who support them, and supportive of another clique of women and the men who use them. Roe
is fundamentally an attack upon the suffrage and political equality of women whose first commitment is to marriage and marital
mutuality, who expect both parents to show equal responsibility for procreation and child-rearing, and who want state support
for those roles and responsibilities. Roe compels lawmakers to disregard calls from these women for legal support for procreative
mutuality and family integrity by restricting abortion. On the other hand, Roe gives absolute, unqualified legal priority
to women who engage in nonmarital and extramarital sexual liaisons, who want to avoid procreative responsibilities, and who
are willing to go to the extreme of killing their living, unborn offspring in order to prevent the birth of a child who would
impose childrearing responsibilities or guilt upon them. Roe is hostile to the policy needs of families and to the women and
men who would ask the law to support family integrity; Roe gives constitutional preference to the policy agendas of single,
sexually-irresponsible women and the men who wish to use them for sexual pleasure without social or child-rearing commitment.
The gender gap that Roe has created is not so much men versus women, but women and men who reject sexual and procreative responsibility,
on one hand, versus women and men whose first commitment is to families and children, on the other. Roe decrees constitutional
preference for single career women (and their male partners) over married women whose full-time commitment is to home and
children.
Finally, growing evidence about the strong link between abortion and breast cancer (especially in young women), confirmed
and reconfirmed in multiple studies, despite efforts by pro-choice advocates to dismiss and ignore the data,(601) raises further
questions about whether abortion really is good for women (not to mention good public policy or good constitutional law).(602)
It also undermines one of the stated justifications for the Roe decision--that abortion is "relatively safe."(603)
D. The Effects of Roe on Social Mores in General
Roe has been associated with a sordid web of misrepresentations and distortions from its beginning.(604) For example, Dr.
Bernard Nathanson, (once head of the largest abortion clinic in the country and a leader of the pro-abortion movement at the
time of Roe) has acknowledged the fabrication and inflation of claims about the number of women who died from illegal abortions.(605)
NARAL's Kate Michelman's perpetuated that tactic by her emphatic denial that she said, "`We think abortion is a bad thing.
No woman wants to have an abortion.'"(606) But the reporter stood by her report because she had taped the interview,(607)
and that the "plausible deniability" cover-up attempt failed.(608)
Likewise, the multitude of lies and false testimony given to Congress and the public about partial birth abortion by representatives
of the abortion industry has been publicly exposed.(609) Defenders of the ghastly practice were caught lying before Congress
about how partial birth abortions are performed (lying that the anesthetic killed the baby), when they are performed (in the
fifth and sixth months of gestation, not merely in the last three months, as emphasized in testimony), why they are performed
(for elective reasons of personal convenience, not merely in cases of medical necessity as defenders of partial-birth abortion
claim), and how many are performed (approximately 4000 to 5000 per year, not just a few hundred).(610) The Executive Director
of the National Coalition of Abortion Providers admitted on Nightline that he had "lied through [his] teeth" when he testified
before Congress concerning the procedure.(611)
Abortion-on-demand litigation has contributed to the degeneration of social mores not only in its substance and policy,
but also in its methods. Some who advocate abortion apparently believe that the ends justify the means, and that misrepresentation,
distortion, and deception are legitimate methods to
"protect" and promote the "right" to abortion.(612) That is not surprising; lawyers have known for centuries that those
who kill will also lie; and just as abortion involves the deliberate killing of a living-but-unborn human-in-utero, the legal
doctrine of Roe is both based upon and has spawned a mountain of falsehoods, pious frauds, and legal myths.(613)
E. The Effects of Roe on the Quality of Life
One of the most striking dimensions of Roe is the cavalier disregard for the most vulnerable human beings on the fringes
of life and society. The Supreme Court essentially created a new category of illegitimates in Roe, giving the imprimatur of
the Constitution to public apathy about killing a potentially burdensome, powerless, unwanted class of human beings. If a
living, growing, healthy human being deemed inconvenient to a single individual may not be protected in the earliest stages
of life, what about those in the last, most burdensome and expensive stages of life? While the judgments in last year's assisted
suicide cases reveal that the Court wants to avoid repeating the mistake of Roe,(614) the narrow judgments and fragmented
opinions contain ominous uncertainties. Further, the connection between abortion and euthanasia has long been noted.(615)
Abortion is an act of violence. That is not a moral judgment, it is a statement of simple fact. Abortion is an act of deadly,
intentional destructive violence. In fact, abortion is the most widespread form of domestic violence. And while the unborn
may not be deemed "persons" in constitutional law, for those who consider the fetus to be an unborn child (which, in at least
some circumstances most Americans do),(616) abortion could be described as the most deadly and most widespread form of child
abuse. Is it any wonder, then, that since Roe legalized and popularized indiscriminate abortion, numbers and rates of other
forms of child abuse have also skyrocketed?(617)
VI. CONCLUSION: A CALL FOR RECOMMITMENT TO PROTECTING PRO-LIFE FREE SPEECH
It has been said that those who will not learn from the mistakes of the past are destined to repeat them. Americans made
a grave mistake a century and a half ago in their effort to stifle the expression of abolitionist speech.(618) The country
today is poised to repeat that mistake.(619) Efforts to suppress abolitionist free speech in the generation before the Civil
War did not end the abolitionist drive to eliminate slavery in the United States.(620) It only thrust the controversy into
violence; it produced the martyrdom of John Brown and eventually a Civil War.(621) It should come as no surprise today to
discover that when pro-life advocates who urge the abolition of elective abortions are denied the right to participate in
making the laws that govern them on this issue (remember that Roe removed the issue from the political process); when they
are told by judges and law enforcers that they cannot even peaceably picket, demonstrate or otherwise publicly express their
anti-abortion views; when some are assaulted by pro-abortion workers, arrested, abused, treated with hatred and scorn, subjected
to exorbitant fines, excessive penalties, and expensive attorneys fees, harassed with civil suits, and denied basic fairness
and simple justice by the courts, it is tragic and wrong, but certainly not surprising if, under those conditions, some of
those modern-day abortion abolitionists responded with acts of violence, just as it happened 150 years ago.(622) Acts of violence,
intimidation, or lawlessness by anti-abortion activists are condemnable; those who commit such deeds should be pursued, caught,
charged, tried, and if found guilty, punished to the full extent of the laws. Those who kill in the name of "pro-life" values
are terribly and dangerously misguided. They impair the common weal, and are guilty of gross hypocrisy as well as of murder.
Such violence is not only deplorable and detrimental, it is also strategically unnecessary. Yet violence by anti-abortion
extremists who are denied their rights of free speech is as predictable as it is intolerable. The Court's own lawless abortion
jurisprudence and myopic suppression of pro-life free speech are not unrelated. The lessons from the abolitionist-slavery
struggle of 150 years ago are obvious, and because they are so obvious, it is tragic to witness our country ignore those lessons,
make the same mistakes again, and begin to rekindle the same kind of violence and conflagration.(623)
We face an impending crisis. There are some moral issues that simply will not go away, that will not be suppressed, and
some ideas are so powerful that they cannot be killed. There are some evils that are so compelling they cannot be ignored,
or covered up, disguised or concealed. Slavery was such an evil. Abortion is another. There are some rights that are so fundamental
that they cannot be suppressed forever. Free speech of abolitionists was irrepressible. Free speech by pro-lifers is likewise
indomitable. Just as the abolitionists presented the first, great test of the nation's commitment to protecting the rights
of unpopular speech, the anti-abortionists present the latest serious test of the nation's commitment to the free-speech values
of the First Amendment, and to the notion of equality under law for those whose opinions are anathema to the powerful elites
of American society
We must never underestimate the power of evil, the arrogance of evil, or the extremes to which those who practice and defend
evil will go to muzzle, suppress, repress and extinguish voices that oppose them. As the pro-slavery population from 1830
to 1860 intensified their repressive tactics, with every victory pushing harder and going further to silence the abolitionist
voices, likewise we see today an intensification of the tactics of pro-abortion forces to suppress pro-life free speech.(624)
Convicted by the inner voices of their own consciences, facing rejection by their own human nature and unwilling to acknowledge
their mistakes, they demand compensatory external acceptance and extravagant public support. Their desperate need for external
social/legal/political approval intensifies as the inner moral scaffolding of their lives collapses, and the effort to silence
those who disagree increases as the fiber of inner peace atrophies and dies. Those who would suppress pro-life free speech
are serious; they are not to be trifled with; they are dangerous. History teaches that it would be naive to ignore them, or
to underestimate the burdens that they will inflict upon abortion abolitionists who persist in their efforts to express their
opposition to abortion-on-demand in the years ahead.
The history of the threat to free speech rights of unpopular abolitionists a century-and-a-half ago also teaches us the
importance of the survival of our vital First Amendment by the Supreme Court clearly rejecting, resisting, and repudiating
the temptations to cheat, cut corners, restrict, to deny to advocates of unpopular antiabortion speech the equal enjoyment
of full constitutional protections of free speech. For, regardless of one's views about abortion, the right of all Americans
to express their opinions on that subject is a cornerstone for the continuation of our constitutional government and liberties.
The courts today are caught in a dangerous conflict of interest arising out of the Roe doctrine. They created the unpopular,
controversial Roe rule which anti-abortion activists yearn to overturn by exercising their free speech rights, which the courts
for many decades have been particularly responsible to protect. The conflict is apparent. The federal courts have resisted
all legitimate political efforts to curtail that rule for a quarter-century, striking down virtually all significant abortion
restrictions (save only limited parental participation and public funding restrictions). For a quarter-century, they have
defied and denied the authority of the other branches of government, and of the states, to participate in the establishment
of a policy on the profound social issue of the extent to which abortion should be restricted. They have repeatedly reaffirmed
and expanded the Roe doctrine against repeated expression of state legislative dissatisfaction. They have endured much professional
and political criticism for Roe. Now, the temptation for the courts to undermine the opposition to the rule by denying full
First Amendment protections to pro-life free speech, and by upholding restrictions upon free expression which it would not
uphold if applied to advocates of other unpopular ideas, cannot be ignored.
If the modern abortion-abolitionists are relegated to second-class citizenship by denial of their rights of free speech,
our entire nation shall have lost something that cannot easily be recovered. The right to engage in unpopular speech about
controversial social issues is not a gift of the courts, to be extended and withdrawn as they agree or disagree, are flattered
or offended, or as they deem reasonable or misguided (even disturbing) the controversial speech involved. Rather, it is a
sacred constitutional right which no official has the right or authority to diminish, and which the courts have the tremendous
duty to protect. Many American courts, including the United States Supreme Court, have failed to give pro-life expression
full and equal speech protection, and by their careful neglect, they have eroded the free speech rights of all who engage
in unpopular, controversial, political speech
It is now time for the Supreme Court, and all courts, to take seriously the obligation to be especially careful of, and
particularly protective of, the rights of those who strongly oppose the Court's Roe doctrine, to engage vigorously, seriously,
and zealously, in pro-life free speech and responsible related expressive conduct. If Roe survives another quarter-century
because of the judiciary's continuing double-standard of First Amendment protection (blatantly biased against anti-abortion
speech, and their blind-eye disregarding of violations of the free-speech rights of anti-abortion protesters), the Constitution
and the nation will have been more than twice impoverished. The cumulative effect of both vices--mandatory abortion-on-demand
and suppression of pro-life free speech--combined is greater than the mathematical sum of the double loss of civic virtue.
The risk of loss of First Amendment rights is particularly dangerous. Sooner or later, history shows, common reason, humanity,
and the truths about abortion that have been buried beneath the ideology of abortion-on-demand will be rediscovered and reasserted,
and Mr. Jefferson's first inalienable right will be vindicated again. But the loss of the constitutional protection of free
speech, especially protection of the expression of unpopular ideas, most importantly for the right to criticize official rules
established and nurtured by the powerful governmental institutions, including the body that is uniquely charged with protecting
freedom of expression, may not so surely or so simply be recovered.
