What Now, Lifers?: Ditch partial-birth.

Pro-lifers, one might think, have never had it so good. "As you know, I campaigned as a pro-life candidate," George W. Bush reminded the country shortly before his inauguration. On January 22, his first weekday in office, Bush banned aid to international groups that promote abortion abroad. The same day, tens of thousands gathered in Washington to participate in the March for Life. They hailed Bush's move, and their cheers resounded-it was the annual event's biggest crowd in recent memory. The new secretary of health and human services, former Wisconsin governor Tommy Thompson, is pro-life. The abortion rate is down nationwide. And poll support is as strong as ever: Americans are about as likely to call themselves pro-life (45 percent) as pro-choice (47 percent), according to a Gallup survey last fall. (In years past, the pro-choice label enjoyed as much as a 23-point advantage.) A Los Angeles Times poll in June found that 65 percent of the public believed that second-trimester abortions should be outlawed. Pro-life candidates continue to benefit from their stand: Among the 7 percent of voters who say they care deeply about abortion, Bush trounced Al Gore, 61 percent to 30 percent, according to Democratic pollster Mark Penn.

So what should the pro-life movement do now? It should suspend the most successful political strategy it has ever had: the drive to ban partial-birth abortions.

The mere proposal of such a ban was, politically, a smashing success. "It's the only example we have of a pro-life legislative initiative moving public opinion," says Princeton University's Robert George. It has compelled the media, at least occasionally, to describe in some detail what Supreme Court justice Sandra Day O'Connor has called "a rather gruesome procedure." And it gave the pro-life movement a rallying point during the eight wilderness years of President Clinton.

But the pro-life movement has squeezed everything it can out of partial-birth abortion. To begin with, its value was primarily symbolic. In almost all cases, a woman slated to receive a partial-birth abortion could also get an abortion another way. Symbolism shouldn't be underrated; but the symbolism of partial-birth abortion could now end up cutting against pro-lifers. The effort to end the practice suffered a major defeat last summer when the Supreme Court struck down a Nebraska law that served as a test case for restrictions that had been passed in nearly half the states. This was a demoralizing moment for pro-lifers, who had struggled for years to achieve what would in substance have been a rather modest gain. The political temptation has been to forge ahead anyway. Banning partial-birth abortion remains attractive to pro-life strategists because it regularly wins almost two-thirds approval in polls. As recently as last fall, it gave pro-life candidates an appealing way to talk about abortion before a divided public. In fact, it was one of the few routes Bush would use to approach anything like specificity on the subject; during his first debate with Gore, Bush actually raised the issue himself.

Yet emphasizing partial-birth abortion was a curious choice. "Bush led the grass roots to believe partial-birth abortion would be a top item on his agenda," says Teresa R. Wagner of the Family Research Council. "I was a bit perplexed by that." Congress twice passed a ban, which Clinton vetoed both times. The pro-life grass roots may now expect Congress to send the same bill to Bush's desk for a signature, and soon.

But that would be a mistake. The courts would slap an injunction on the ban immediately, and then they would review a law almost identical to the one they struck down just last year. The main difference would be that Congress would have passed it, rather than a state legislature-and this difference would hardly impress the judiciary. The only way it might pass Supreme Court scrutiny is if it included a "health-of-the-mother" exception broad enough to neuter its ability to reduce abortions. This would have the additional harmful effect of encoding precedent-setting language that would actually make meaningful pro-life legislation harder to pass in the future.

This is not what pro-lifers need right now. And they have had some dispiriting news recently: During his confirmation hearings, attorney general-designate John Ashcroft said the Supreme Court's rulings on abortion are "the settled law of the land," and added, "I don't think it's the agenda of the president-elect of the United States to seek an opportunity to overturn Roe." He wasn't speaking off the cuff; these words were carefully prepared by the Bush transition team, and are sure to be read back to the first Supreme Court nominee Bush sends to the Senate: "Do you agree with Attorney General Ashcroft that Roe is 'the settled law of the land'?" Then there was Laura Bush's statement on the Today show that "I don't think that [Roe] should be overturned." The pro-life movement was eager to have a Republican First Lady who shares their views; but if there's a litmus test for determining who is pro-life, opposition to Roe is a pretty good one. Perhaps Mrs. Bush, like many Americans, is confused about what overturning Roe would accomplish. In any event, her statement was hardly encouraging to pro-lifers-who would do well to start looking for some concrete accomplishments.

There are several reasonable steps the Bush team could take in the short term. They could reverse Clinton-era guidelines that allow research resulting in the destruction of human embryos, and push for increased penalties for crimes committed against pregnant women, as well as a prohibition on taking minors across state lines for the purpose of evading abortion restrictions.

What's more, the pro-life movement as a whole should now dedicate itself to passing an abortion-survivor law on the federal level, and should do so with the same intensity it recently devoted to the partial-birth-abortion ban. The Born-Alive Infants Protection Act would protect children who live through an abortion procedure. There have been several reports of this actually happening; the children involved died when they were denied medical attention. Forty-one states already have laws along these lines.

If a federal abortion-survivor law were to save even a single life, it would be worthwhile. It would also serve another important function: It would acknowledge the rights of children as independent from those of their mothers. Pro-choice politicians have been very successful at focusing on the health of women in the context of abortion, without ever making reference to the interests of their children. Virtually everyone this side of NARAL agrees that the line between abortion and infanticide must be drawn somewhere; the whole partial-birth-abortion effort was a failed attempt to do this. Delivering explicit rights to babies who somehow outlive abortions is a reasonable place to start. It's not even a new idea; Hadley Arkes first proposed it on these pages more than twelve years ago ("How to Roll Back Roe," October 28, 1988). Since then, Arkes has been a dogged advocate of this legislation, calling it a "modest first step." It's a modest step the pro-life movement should now take. Call it a baby step.