The pro-life movement in political retreat

(RNS) — The 1864 Arizona law criminalizing abortion except to save the woman’s life is now history, Gov. Katie Hobbs having signed the bill overturning it on Thursday. But Arizona is not done deciding on the issue: A referendum has been added to November’s ballot that would do away with the state’s 2022 ban on abortions (except in a medical emergency) after 15 weeks.

At least one of the handful of Republicans who joined the Democrats in voting down the 1864 law did so in order to increase the likelihood that the referendum fails. That was Sen. Shawnna Bolick, who happens to be married to one of the state supreme court justices who got the ball rolling a month ago by upholding the 1864 law. 

Explaining her vote in a highly personal 20-minute speech on the state Senate floor, Bolick denounced Planned Parenthood even as she allowed that the 1864 law could have barred the D&C abortion procedure she underwent when her first pregnancy was declared non-viable.

“Would Arizona’s pre-Roe law have allowed me to have this procedure even though at the time my life was not in danger?” she asked. “Maybe. I don’t know.”

It’s unlikely. The 1864 law reads: “A person who provides, supplies or administers to a pregnant woman, or procures such woman to take any medicine, drugs or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless it is necessary to save her life, shall be punished by imprisonment in the state prison for not less than two years nor more than five years. ”

Implying that the November referendum was more likely to pass if the 1864 law stayed on the books, Bolick stated, “We should be pushing for the maximum protection for unborn children that can be sustained.” (Emphasis added)

But it’s a good bet that the 15-week ban, which permits no exceptions for rape or incest, cannot itself be sustained. According to a new report from PRRI, 60% of Arizonans say they want abortion to be legal in all or most cases. All the referendums on abortion that have taken place since the U.S. Supreme Court overturned Roe v. Wade two years ago — including in states much redder than Arizona — have supported abortion rights by margins between 52% (Kentucky) and 67% (California).

If the Arizona referendum passes, it will amend the state constitution to establish a right to abortion prior to viability and, after viability, a right to abortion if deemed “necessary to protect the life or physical or mental health of the pregnant individual.” 

A comparable constitutional amendment will be on the November ballot in Florida, where a new six-week abortion ban — with a number of exceptions, including rape, incest, and human trafficking — went into effect this week. There, prospects for passage are more iffy, since in contrast to the other referendum states, Florida requires 60% in favor to pass. Sixty-two percent of Floridians say they want abortion to be legal in all or most cases, according to PRRI.

Whatever happens in Florida, there’s little question that the pro-life movement has pushed the political envelope too far. Back when abortion was a constitutional right, it was forced to be incrementalist because the courts had to be pushed step by step to allow restrictions. But once Roe was overturned, the pressure to act on its rhetoric of life-from-the-moment-of-conception and abortion-is-murder became irresistible.

What it’s come up against is the well nigh immovable belief that a fertilized egg is not a person. Just consider the undeliberate speed with which Alabama — Alabama! — acted to ensure the continuation of in vitro fertilization after its Supreme Court declared frozen embryos to be children.

This should not be dismissed as merely the tragic consequence of our irreligious and libertarian age. It would have resonated with Thomas Aquinas, the foremost theologian of the most anti-abortion religious tradition the world has ever seen.

In his Summa Theologiae, Aquinas denied that early abortions were murder by adopting the Aristotelian view that fetuses did not acquire human souls until well into pregnancy. Non-Christian religious traditions have always allowed abortions under a range of circumstances and value the life of the mother over the life of the fetus.

“A moral answer concerning the abortion issue is not simple,” Muslim bioethicist Badawy A. B. Khitamy wrote in 2013, in a careful review of the theological and philosophical literature. “Our ideas about life, ensoulment, personhood, and the value of the human being are shaped by various religious and philosophical influences.”

Not only is American society deeply divided on the subject, but we are a country founded on deep deference to diversity of belief. For all its success in the courts, the pro-life movement now finds itself at profound odds with that deference and is starting to pay the price.