A new strategy

Sixteen years after the last vote on a constitutional amendment on abortion in Congress and seven years after the Casey decision and the Clinton election, it is timely to ask: what are the goals of the cause for life? Renewed focus on goals, and the means to achieve them, is necessary to effectively direct precious resources now. The political, legal, and cultural environment has changed significantly, which should influence judgment as to what action will be truly effective in bringing about positive change.

In its broadest terms, the goal on abortion might be described as "a society in which every child is protected in law and welcomed in life," in Richard John Neuhaus' inimitable phrase. This statement captures the reality that a real solution to abortion must take account of both law and culture. Ultimate goals need to take account of the legal situation, and any account of the legal situation quickly reveals that the Supreme Court's 1973 decision in Roe v. Wade is still a primary obstacle to a culture of life.

Because Roe created a national right to abortion and declared that unborn children are not "persons" with the same constitutional protection as born children, the political goal most frequently mentioned has been a Human Life Amendment (HLA). An HLA would declare unborn children to be "persons" subject to equal treatment under the Constitution and preclude discriminatory action by the states.

Unfortunately, no one has ever devised a coherent plan to achieve an HLA. Early efforts to pass such an amendment in Congress in the 1970s assumed public rejection of the Roe decision. Based on the cultural, political, and legal experience of the past 26 years, it is clear that an BLA cannot be achieved through education alone. The political and legislative processes of the states must first be opened up by eliminating a national right to abortion and returning the abortion issue to the states. Only by opening up the democratic process and allowing the beneficial impact of real legal restraints on abortion-along with other necessary social and cultural changes-might a national consensus for an HLA be created. Such a change in the political and legal situation can only be achieved through a federalism amendment (or equivalent Supreme Court decision) that would eliminate the national right to abortion and return the issue to the states.

Some Background

The abortion issue has gone through four stages, generally speaking, over the past 40 years. Throughout these stages, the goals have changed as the nature of the problem has changed:

1) the pre-Roe era, roughly the 15 years between 1958-1973, marked by efforts to change elite opinion, public opinion, state law, and the courts in favor of abortion, and the counter effort to sustain state abortion laws, culminating in the Roe decision;

2) 1973-1983, the first decade after Roe, during which the cause for life pursued constitutional amendments in Congress to overturn Roe;

3) 1983-1992, when the cause for life emphasized efforts to overturn Roe through the courts. With the vote against constitutional amendments in the spring of 1983, and Justice O'Connor's 1983 dissents in the Akron and Ashcroft cases, focus shifted from a constitutional amendment to persuading the Court to overturn Roe. That strategy made sense at the time, because Ronald Reagan-the most pro-life President since Roe (following Nixon, Ford and Carter)-was determined to change the Court, and change seemed to be happening. Positive movement was seen in the Supreme Court's 1989 Webster decision. But, ultimately, as we know now, not enough change was achieved. The 1992 Casey decision revealed that the Court had not changed as much as people had hoped. Culture defeated reason; institutional ego defeated constitutional authority. In retrospect, it seems that the decisive institutional moment came with the congressional mid-term elections of November, 1986, when pro-abortion Senators took back control of the Senate, and the judicial nomination and confirmation process changed dramatically. Recall that the summer of 1986 (prior to the election) saw the relatively easy confirmations of Justice Rehnquist as Chief Justice and Antonin Scalia as Associate Justice; but the following summer saw the Bork Debacle, and the Reagan/Bush nomination process was never the same again.

4) Finally, the fourth and current stage, the post-Casey and Clinton era, when the cause for life has been defending itself against annihilation and focusing on broader and more indirect legal and cultural change. Long-range goals have been understandably muted during this period. The primary reason for this is obvious-vital resources were being deployed to counter various attacks, including the Freedom of Choice Act (FOCA), abortion in national health care, and campaign-finance legislation. Some of the most extreme pro-abortion initiatives were defeated. It was understandable to put discussion of the big picture on the sideline while every effort had to be made to avert catastrophe during President Clinton's first term.

This threat abated somewhat when the 1994 elections changed the balance of power in Congress and created a favorable legislative environment for the introduction of a prohibition on partial-birth abortion (PBA). The educational potency of this issue is shown by the fact that it has spread like wildfire, state by state. Important strides have been made by the debate: for example, more Americans than ever before have been educated that lateterm abortions occur and that they are legal. And exposure of the partialbirth procedure inevitably raises the question: is any other abortion, at any earlier time of pregnancy, more humane? Throughout these last six years, given the obvious political and legal obstacles, proper emphasis has been placed on broader educational initiatives and cultural reform.

The Challenge of Public Opinion

But where does the cause for life stand seven years after Clinton/Casey? At least two things stand out. First, nothing has changed since 1992 that would indicate that the Court is ready to overturn its blunders in Roe and Casey. In effect, as far as the Court is concerned, the cause for life is back where it was before Ronald Reagan was elected-with neither a pro-life President nor five justices who are inclined to overturn Roe and return the issue to the people. And the pro-abortion majority has only gained on the Supreme Court since 1992, with the addition of Justices Ginsburg and Breyer. Every indication is that this Court will invalidate any abortion legislation, state or federal, that flies in the face of the Casey decision.

Second, 26 years after Roe, Middle America (the 60 percent in the middle) sees abortion as a "necessary evil," and this has enormous implications for future education. There is abundant evidence that Middle America sees abortion as an evil. A poll released in January, 1999 reported that 50 percent of Americans see abortion as "murder." That reinforces the 1991 Gallup Poll, which put that figure at 49 percent. But the Gallup Poll went farther and showed that an additional 28 percent saw abortion as at least "the taking of human life." So, a total of 77 percent saw abortion as at least the taking of human life, if not murder itself. We have won that public argument. Even though many Americans view abortion as an evil, many believe it is a "necessary evil."

But "necessary" for what? The answer, in many Americans' minds, is necessary to avert the back alley. The public has bought the myths of abortion history created by abortion advocates in the 1960s:

the myth that abortion law did not effectively prevent abortions;

the myth that women rather than abortionists were the target of abortion laws before Roe;

the myth that hundreds of thousands of illegal abortions were performed every year before Roe;

the myth that hundreds, or even thousands, of women died every year from illegal abortions;

the myth that legal abortion means safe abortion.

In other words, the public unfortunately believes that laws against abortion will mean no fewer abortions, and result in many more deaths to women, and in unfair prosecutions of the survivors. "The status quo is bad," many think, "but it would be worse if abortion laws were restored. What's the alternative to the status_quo?"

Confronted with the persistence of these moral qualms by a substantial majority of Americans, the purpose of the "choice" rhetoric is precisely to sideline Americans' qualms. The tactic is to convince Americans that, no matter what they feel about abortion, the only real option is to persuade women to choose alternatives. Pro-life Americans have an immediate response to abortion-"because abortion takes a human life, prohibit it!" In contrast to this ready pro-life response, the effect of the "choice" rhetoric is to convince Middle America that legal prohibitions are not a reasonable or effective option. And the most enduring and effective argument that abortion proponents have used over 30 years can be summed up in the coat hanger. Again, this is not ideological, it is practical. Surrounding the coat hanger are a number of myths about the impact of abortion law in the pre-Roe era and about the safety of abortion since legalization. However bad Americans feel about abortion, the pro-choice rhetoric says, legal prohibitions would only make the problem worse.

The myth of abortion as a necessary evil explains why some polls can show that a majority of Americans think that abortion is murder yet think that it should remain legal: while they are against abortion, they don't think that criminalizing it is a realistic solution. Alternatives, prevention, adoption, yes. Criminalizing, no. Thus most Americans support practically any regulations short of criminalization. If abortion prohibitions are not a reasonable option, the most opponents can do is to persuade women to choose an alternative ("choice"). There will be no dramatic turn around in the shortterm in the uncertain public attitudes that we have unless we overcome the myth of abortion as a necessary evil. This myth has dominated public debate for thirty years, and the cause for life has never done the heavy lifting needed to dispel it, yet it may be the key to unlocking the puzzle of changing public opinion over the next decade.

There are at least three objectives for changing public opinion over the next decade: dispel the myth about the back alley and the pre-Roe era, eliminate the sense that abortion laws would be targeted against women rather than abortionists, and heighten the public sense that abortion is not good for women (thereby diminishing the sense that the evil is "necessary").

What a Federalism Amendment Would Do

In this context, what is the relevance of a federalism amendment? In order to see the great benefits of a federalism amendment, it is important to understand the practical impact of Roe v. Wade.

Roe did two things, one of enormous and one of little practical impact. First, it created a national (federal constitutional) right to abortion, empowering the federal courts to block state enforcement of abortion laws with injunctions. As a practical matter, that prevented the states from prohibiting the abortion trade. (At least one state, Rhode Island, tried to enact comprehensive protective legislation in the face of the Supreme Court's decision, and that legislation was enjoined. After the Webster case in 1989, Louisiana and Guam also tried strongly protective legislation, but these were invalidated by the courts after Casey and the Supreme Court refused to hear the cases.)

By creating the most permissive national rule imaginable, the Supreme Court paralyzed the democratic process. The basic political problem with Roe is that it dismantled American democracy-it prevented the people from expressing their will on the issue of abortion through legislation, as they had for at least 150 years before Roe. As a result, public policy does not reflect public opinion. As the 1991 Gallup Poll shows, most Americans oppose most abortions. The Supreme Court still stands in the way and still prevents protective laws from being enacted and enforced. But we should not be lured into thinking that protective laws are not needed and that persuasion alone can significantly reduce abortion. Twenty-five years demonstrate that.

Second, Roe said that an unborn child is not a "person" with rights protected by the federal constitution. While this has been a great focus of ideological fervor, it did not introduce anything new as a practical matter. It meant that the states could legalize or promote abortion without violating the federal Constitution, but this was something that some states (15 to be exact) were already doing between 1967 and 1973, even before Roe. Roe did not lift an existing barrier to state legalization of abortion. What prevented states from legalizing abortion prior to 1973 was culture, not law. (And some states did reject legalization just before Roe.)

A federalism amendment would address the first, and most important practical impact of Roe. It could be patterned after the Hatch Federalism Amendment introduced by Senator Orrin Hatch in September 1981 as S.J. Res. 110. (It was variously referred to as the Hatch Human Life Amendment [Hatch HLA] and the Hatch Federalism Amendment. The exact Hatch language was: "A right to abortion is not secured by this Constitution. The Congress and the several states shall have the concurrent power to restrict and prohibit abortions: Provided, that a law of a state which is more restrictive than a law of Congress shall govern.") As pro-life legal expert Dennis Horan explained in his testimony before Congress in 1981, a federalism amendment would be patterned after the 13th Amendment (abolishing slavery) in denying a "right" previously created by the courts. It would return the issue to the states and get the federal courts out of the way of blocking state laws against abortion, allowing the states to act.

A federalism amendment would thus eliminate the great corruption of the political process introduced by Roe. For example, some complain that the definition of "pro-life" public official is diluted by officials who will only support parental-consent or -notice laws, or informed consent for abortion laws, or prohibitions with exceptions. But it is not lack of pro-life will or conviction that prevents voters from defining pro-life legislators more strongly. It is because the Supreme Court has swept abortion prohibitions of any kind off the political map. Abortion prohibitions are not legal or political alternatives because the courts have uniformly and effectively quashed them since 1973. If they are not policy options, they are not electoral options, and they cannot be effectively used to define "pro-life." Asking a public official to commit to a theoretical position is much less effective than asking her to vote up or down for a bill right in front of her. Thus, the largest contribution to weakening the definition of "pro-life" public official over the past 26 years has come from the Supreme Court.

A federalism amendment would not be a "state's rights" amendment (as that term has been used concerning various amendments in the 1970s) because it would not seek to empower the states with some limited power to permit or prohibit abortion. (The second sentence of the Hatch Amendment was intended to prevent Congress from preempting state pro-life laws.) It does not express a neutrality toward human life. It does not say anything about states rights, and it would not give to states any powers that they did not have before Roe. (Recall that some state legislatures were already legalizing abortion before 1973.) A federalism amendment would remove abortion from the federal constitution without putting anything into the Constitution. It would not put any exceptions language into the Constitution. It would not make any distinction between human beings (or persons) with constitutional protection and those without. It would leave this untouched, and by saying nothing about personhood, it would leave that issue to another day. Thus, it would not foreclose political leaders from achieving a greater measure of justice in the future.

A federalism amendment would contain no exceptions for a national abortion right and thus avoid an internal debate over "exceptions." It would return the abortion issue to the states. To paraphrase Professor David Louisell, a federalism amendment "will return us to the status quo ante [before Roe]."

Alteratives to A Federalism Amendment

Of course, a federalism amendment would not provide perfect protection throughout the country. While it would remove the biggest practical obstacle created by Roe-disabling the effective exertion of the popular will through law-it would not supply that public will by itself.

It is susceptible to a number of reasonable criticisms. But what goal or strategy is perfect? Striving for perfection that is not achievable can prevent obtaining the good that is achievable. In a democratic society, where political power is widely diffused, and public opinion is a dominating factor (for good or ill), political prudence counsels that only the best strategy can and should be pursued. What goals, what strategy, might be superior to a federalism amendment in our secular, democratic society? There are basically eight alternatives.

1) Human Life Amendment. When pressed about ultimate goals on abortion, many pro-life leaders implicitly support a Human Life Amendment (HLA). This makes sense, ideally. An unborn child should be protected to the same extent as a born child, and if a born child is currently protected as a "person" under the 14th Amendment from state discrimination, an unborn child should be protected as well.

But it is in contrast to an HLA that the prudence of a federalism amendment is best illustrated. An HLA would overturn the national right to abortion and include the unborn within the protection of the 14th Amendment. Although an HLA would not criminalize abortion by itself (it would merely prevent every state from promoting abortion), the dominant public message disseminated by abortion advocates is that it would criminalize abortion without any exceptions. (And, if the logic of an HLA is that unborn children should be protected on a par with born children, just as the 14th Amendment does not act as a criminal code protecting born children, it should not act as a criminal code protecting unborn children. We really shouldn't strive for more than parity, even in an ideal world. Protecting human life is, and should be, relegated to the states in our federal system.)

Assuming that an HLA is an ultimate goal, how can that be achieved? Frankly, the problem is that, after 26 years of abortion on demand, there is no realistic, viable plan for achieving a Human Life Amendment in the current cultural context. Many leaders still talk about a Human Life Amendment as the pro-life movement's ultimate goal, but no plan has ever been outlined since attempts to pass an HLA failed in Congress in 1983-16 years ago. Many seem content to assume that it will take "30 years" to achieve a Human Life Amendment.

Passing a Human Life Amendment would require moving public opinion from the status quo of abortion on demand to public support for a nationwide rule of no abortions. An HLA would most likely be perceived as a national rule prohibiting abortion without exception. And it would be necessary to achieve this change in public opinion through education alonesimply dramatically changing public opinion through education. With Roe still in place and the federal courts still blocking life-protective legislation, it would not be possible to secure a change in public opinion through the teaching of the law or by the practical effect of prohibiting abortions, anywhere, in any state, at any time of pregnancy. Before proposing a vote for an HLA in Congress or state conventions to ratify an HLA, the public could not be educated by experiencing the positive impact of abortion prohibitions somewhere in the country. The dominant public message by abortion proponents would be that a vote for an HLA would return America to the days of the back alley. In effect, we would be asking America, with one vote, to choose between the status quo and an uncertain future with abortion banned everywhere.

Consequently, some commentators reason that "a Human Life Amendment can be attained only when there is a firm and very broad consensus in favor of the right to life and that can happen only when abortion is relatively rare. " This makes enormous sense. One of the major differences between seeking a HLA in 1973 and seeking one 26 years later is that abortion had not pervaded the culture in 1973, and the repeat-abortion rate has nearly tripled since then. It seems doubtful that Americans would vote for an HLA at the same time that the culture still "supports" 1.2 or 1.3 million abortions annually. The cultural attitudes that produce more than one million abortions annually are not the attitudes that will support a Human Life Amendment.

But, if this makes sense, how do we make abortion "relatively rare" with Roe in place (preventing states from banning virtually any abortion, at any time of pregnancy)? It simply can't happen. We should not be lured into thinking that the law can just be ignored and that abortions can be radically reduced by persuasion alone, without legal inhibitions on abortionists. Based on the experience of the past 40 years, there is absolutely no reason to think that this is feasible.

Consequently, a federalism amendment should be seen as a necessary (if not sufficient) means for achieving an HLA-by opening up the political and legislative process for life-protective legislation-not as a substitute. The only way to get to an HLA is through a federalism amendment. The only way to get to a national consensus that no state can discriminate against an unborn child is through building a consensus with political and policy changes, not just education.

Finally, the current climate of abortion on demand is the least favorable environment in which to argue for a nationwide rule against rape and incest exceptions. A Human Life Amendment is least likely to be achieved starting from a climate of abortion on demand. Rape and incest exceptions are best disputed when abortion for other reasons is already prohibited, not when abortion on demand is legal and hardly anyone can ever remember the time when any abortion prohibitions existed. Focusing on the injustice of rape and incest exceptions is best fought when abortion is otherwise prevented by law, and best fought by focusing exclusively on such exceptions and their reason for being. That is the nature of public policy-drawing differences and focusing on those differences. Fighting over the broadest differences, urging the most drastic change from the status quo, all in one vote, is the least plausible way to prevail.

To put it another way, in the context of a democratic society, where political power is so diffused, and freedom of speech is almost unlimited, and where public opinion plays such a dominant role, advocating one nationwide rule that so markedly contrasts with the status quo of abortion on demand in every state creates a stark contrast of absolutes, with a Grand Canyon in between, and no means of bridging that gap in public discourse. It presents a stark proposition of "all or nothing." And when the public is comfortable with "nothing," there are no effective means or symbols of persuasion to bring them over to the other side of the divide. Thus, a Human Life Amendment can only be reached as a culmination of an improving legal and sociological process across the country, not as a reversal of its opposite, and such improvement can only come by opening up the legal, political, and legislative process in the states.

2) Have the President Confront the Court. Some will object by saying that constitutional amendments are simply too difficult to obtain in our constitutional system and that other alternative solutions are preferable. Instead, some argue, a pro-life president is needed who will boldly ignore the judiciary and close abortion clinics.

The Lincoln analogy (comparing Lincoln's rejection of the Supreme Court's support for slavery in the Dred Scott decision) is sometimes used to support this idea. But one way in which slavery and abortion are not analogous is in comparing Lincoln on slavery and a pro-life President on abortion. Whatever Lincoln may have said about Dred Scott, Lincoln packed the Court only because the South seceded from the Union, dramatically changing the makeup of Congress which confirmed Lincoln's Supreme Court nominations. A modem President could not successfully defy the law without enormous public support.

3) Have Congress Confront the Court. Others would suggest that the relative success with partial-birth abortion be followed up with more aggressive legislation, in effect ratcheting down abortion step by step through federal legislation. The notion that we can simply use a federal partial-birth abortion ban as a foundation for greater and greater federal prohibitions is misguided. Such federal prohibitions may have educational and political value, but they are not an effective mechanism to overturn Roe or to achieve real, effective, legal constraints on abortion.

4) Learn to Live with Roe. Deciding to "learn to live With Roe" means giving up on effective legal protection for unborn children and giving up on significantly reducing the number of abortions in America. This is, in effect, capitulation to the culture of death.

5) A Human Life Bill. Some would urge that Congress be lobbied to enact a Human Life Bill (not amendment), like that introduced in Congress in 1981. The theory of an HLB is that it would seek to do, by statute, much of what an HLA would do by constitutional amendment. An HLB would seek to fill the gap created when the Supreme Court stated in Roe that it "didn't know" when human life begins. An HLB would fill that gap by defining conception as the beginning of human life. And an HLB would seek to do this pursuant to Congress' power under Section Five of the 14th Amendment (the Enforcement Clause), which gives Congress the "power to enforce, by appropriate legislation, the provisions of this article."

If a human life bill was ever feasible, however, it is now deader than a doornail in the aftermath of the Supreme Court's 1997 decision in City of Boerne v. Flores. There the Court struck down the Religious Freedom Restoration Act (RFRA), which Congress had enacted (pursuant to that same Enforcement Clause) to overturn the Supreme Court's 1991 decision in Employment Division v. Smith and to restore heightened federal protection for religious liberties. The Court in Boerne held that RFRA was an unconstitutional attempt by Congress to make a "substantive change in constitutional protections"--exactly what an HLB would try to do. The meaning of Boerne, as Professor Michael McConnell has said, is that "Congress is limited to enforcing the 14th Amendment as construed by the Court." If the Court overturned the politically popular RFRA on such grounds, an HLB would most certainly meet the same-fate.

6) A Supreme Court Personhood Decision. Even though some pro-life lawyers continue to pursue it, the least likely route to success is a "personhood ruling" from the Supreme Court, holding that the 14th Amendment's protection of "persons" encompasses the unborn child. Despite the strong historical evidence that Congress intended the 14th Amendment to encompass any "human being," no Supreme Court justice has ever announced in favor of such a constitutional position. Virtually all have rejected it, even Justices Scalia and Thomas. At this point, a Supreme Court decision holding the unborn child to be a person and barring the states from promoting abortion is fanciful. A personhood ruling from the Supreme Court is the least likely of all theoretical routes to success.

7) Continue to Change the Court through Judicial Appointments. The Reagan-Bush nomination experience showed the great difficulty of this strategy. It is not enough to have a pro-life President; it is also necessary to have a pro-life Senate. What are the realistic prospects of achieving both in the near future? Even if both are achieved, what are the chances of having 3-4 seats to fill during the pro-life President's term? Over the next decade or two, what will be the more feasible strategy to removing Roe as an obstaclejudicial nominations or a federalism amendment?

8) Wait and See. This will probably be the most common response. Some will undoubtedly say that it's premature to talk about a federalism amendment. Any number of reasons will be given for why such talk is premature. For example, some will say, as long as a pro-abortion President is in office, we must at least wait until the next presidential election.

But agreement, preparation, and substantial cultural change would be necessary before pushing any amendment. If an HLA is impossible without first achieving the practical progress of a federalism amendment, why spend the next decade working as though an HLA is the only goal? What conditionssocial, cultural, political, legal-would have to exist to reasonably achieve a federalism amendment? What timeframe would be reasonable? Because such strategies and tactics may be very different from those required to achieve an HLA, such goals and strategies need to be discussed now.

Devising A New Strategy

There will be no silver bullet that will restore the sanctity of human life in American law and culture. Not a new President, or a new Congress, or a new program. Just as abortion on demand does not exist solely because of the Supreme Court but has sunk deeply into our culture, it will require a broadly based legal, political, cultural and educational strategy to restore the sanctity of human life in our law and culture.

But toward what end does such a strategy point? Does it make sense to pursue a legal, political, cultural or educational strategy with only shortterm objectives in mind, without an ultimate goal? If a federalism amendment is not the goal in sight, what is? If it isn't time to articulate such a goal, when? If not this strategy, which? No passage of time will moot this question. Five years from now, it will still face us.

This is not a plea to introduce-or to have Congress consider-a federalism amendment in 1999 or 2000, or even in the immediate aftermath of the election of a pro-life President. Much political and educational groundwork would have to be laid to prepare Congress and public opinion for-such an amendment. Rather, the task is to re-focus on principled, achievable goals and to lay the groundwork for such goals.

My argument is not that a federalism amendment is preferable to a Human Life (personhood) Amendment but that it is a necessary prerequisite to achieving one. It is the only way (except for a Supreme Court decision overruling Roe) calculated to opening up the legislative process to make abortion rarer and to create the type of social progress that could culminate in a Human Life Amendment. An HLA will come not from a culture and policy of abortion on demand but will be the culmination of a culture in which abortion is increasingly discouraged and rare.

A federalism amendment would require significant change in public attitudes. Starting from the current premise of public opinion that abortion is a "necessary evil," it would require heightening the sense that abortion has been bad, not good, for women. Though a federalism amendment would require tremendous work and a creative educational strategy, it is best calculated to galvanize a great majority of Americans within any foreseeable future by recognizing public ambivalence and the myth of abortion as a necessary evil, and, relying upon such ambivalence, by suggesting that a national rule of abortion on demand has failed and that states should be free to adopt alternative approaches. And yet it does this without establishing, in words or principle, that anything less than a life-protective policy is encouraged in the Constitution itself.

This is a question about goals and plans. Much good work has been done since 1992 to make incremental progress politically, educationally, and legally. But to what is it all pointing? The experience of the past three decadessince the first efforts to legalize abortion in state legislatures in 1967-suggests, on balance, that a federalism amendment is a necessary prerequisite to achieve a human life amendment and that it will do a great deal of good.

Finally, concern about division within the cause for life should not shelve a correct policy. Throughout American history, every social reform movement has experienced division of some kind or another-movements reflect the diversity of our democratic society. It is the necessary function of leadership to articulate principled goals, devise a promising strategy, and take the lead with effective action, seeking always to bridge that division. No doubt, a federalism amendment would be A monumental undertaking, but any legal or political solution that would restore significant authority to prohibit abortion would be a monumental undertaking. There are imperfections with such an approach, but, on balance, it would clear many obstacles out of the way, and promises more progress than the alternatives at any time in the foreseeable future.

Clarke D. Forsythe, an attorney, is president of Americans United for Life (AUL), a national legal and public-policy organization. This essay expresses the personal views of the author and not necessarily those of Americans United for Life. A modified version appeared in National Review (Dec. 20, '99).

Copyright Human Life Foundation, Incorporated Fall 1999
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