After roe v. wade (1973), opponents of abortion scrambled to find restrictions on abortion that the Supreme Court would uphold. These included laws requiring a short "cooling off" period between the request for an abortion and its performance; informed-consent laws requiring disclosure of the medical risks of abortion to women considering the procedure; medical regulations requiring that second-trimester abortions be performed in hospitals or establishing professional standards for those who perform abortions; viability regulations that would establish a uniform definition for viability or that required a doctor to determine whether the unborn child was viable before performing an abortion; and parental and spousal consent provisions. All were invariably struck down in the federal courts, leading law professor Lynn Wardle to conclude in 1981: "The courts have carried the doctrine of abortion privacy to incredible extremes.… The abortion industry … has wrapped itself in the robes of Roe v. Wade, [has] challenged many simple and ordinary state regulations (from record-keeping laws to parental notification requirements) and today claims constitutional immunity from many medical regulations."
Given the judiciary's effective ban on any local abortion regulation during the 1970s, the anti-abortion movement soon sought other methods to achieve its goals, including the constitutional-amendment process. Several constitutional amendments dealing with abortion were introduced in Congress after the Republicans gained control of the Senate in 1980. The first would have defined the term "person" in the Fifth Amendment and the fourteenth amendment as encompassing "unborn offspring at every stage of development" and provided that "[n]o unborn person shall be deprived of life by any person." Another proposal, dubbed the "Human Life Federalism Amendment," provided that a "right to abortion is not secured by this Constitution" and that "Congress and the several states shall have the concurrent power to restrict and prohibit abortions." The intent of the latter amendment was to restore to the legislative branch the power to enact laws dealing with abortion. Many in the anti-abortion movement were critical of this approach, however, believing that it did not go far enough.
When it became clear that no constitutional amendment dealing with abortion could muster sufficient support, some sought to overturn Roe by congressional statute. The "Human Life Statute" was the result; it would have provided a congressional finding of fact that human life begins at conception; it also would have used congressional power to curtail the jurisdiction of the lower federal courts to deal with abortion. The Human Life Statute attracted a great deal of controversy while it lasted, and it received scorching criticism from many in the legal community as an unconstitutional attack on federal judicial power. The statute's defenders included law professors John T. Noonan, Jr. (now a federal appellate judge) and Joseph Witherspoon. Both argued that the right to life guaranteed by the Fourteenth Amendment ought to apply to children in the womb as a matter of proper constitutional interpretation; Witherspoon went to great lengths to show that the Fourteenth Amendment was enacted during a time when stricter abortion laws were sweeping the nation, indicating a general regard for unborn infants as persons with certain rights.
Despite a flurry of hearings and public debate, none of these measures ever had a serious prospect of passing. Once the Republicans lost control of the Senate, even the most zealous members of the anti-abortion movement realized this fact, and so attention turned to executive-branch action. By the late 1980s, many in the movement had decided that their best chance of overturning Roe v. Wade lay in new appointments to the Supreme Court. Hence, both ronald reagan and george bush received widespread electoral support from abortion opponents, even though neither did much to promote anti-abortion legislation in Congress. Abortion opponents hoped Reagan and Bush would appoint Justices willing to undercut Roe. They did not hope in vain. In 1989 the Court finally upheld some minor abortion restrictions in webster v. reproductive health services, and Reagan-appointed Justices provided the decisive votes.
For many opponents of abortion, however, the change in the Court's direction came too late. Appalled by over fifteen million abortions since 1973 and alienated by a court system that they felt had disenfranchised them from the political system, a large segment of the anti-abortion movement turned from politics to mass civil disobedience in the mid-1980s. Thousands became involved in a loose-knit organization known as "Operation Rescue," which staged nonviolent sit-ins to shut down abortion clinics. The magnitude of these protests is indicated by the number of protestors arrested, estimated at between twenty-eight and thirty-five thousand during one eighteen-month period. When tried for criminal trespass, members of Operation Rescue commonly invoke the necessity defense, arguing that they are compelled by a higher law to engage in civil disobedience in order to save human life. A few courts have acquitted protestors on this basis, most notably one in Missouri that based its decision on a state law declaring that human life begins at conception.
As Operation Rescue protests have grown in size and number, some fairly drastic measures have been taken to stop the organization, including lawsuits based on the racketeer influenced and corrupt organization act (RICO). Operation Rescue protestors have also encountered widespread police brutality. In Buffalo male protestors were handcuffed, beaten with clubs, and dragged face-down down a flight of stairs. In Dobbs Ferry, New York, women protestors were strip-searched and photographed nude by prison guards. In Los Angeles police broke a nonresisting man's arm twice, pounded the faces of other peaceful protestors into the asphalt, and repeatedly inflicted pain on protestors who were trying to comply with police requests. In several cities abusive police have removed their badges and name plates to prevent identification by both protestors and the news media. Reports of police brutality became so widespread that in late 1989 the United States Commission on Civil Rights voted to launch an investigation. William B. Allen, then chairman of the commission, declared: "It is imperative that we as a nation assert our commitment to equal treatment before the law. Nonviolent protestors should all be accorded the same treatment no matter what the subject of protest. To do less is to destroy the most prized achievement of the civil rights movement—the recognition of the rights of everyone." The majority of public officials and members of the media, however, paid scant attention to the protestors' plight, and the brutality continued.
John G. West, Jr.
Allen, William B. 1989 Police Brutality—But No Outrage. The Wall Street Journal, August 18.
Senate Committee on the Judiciary 1982 The Human Life Bill (Hearings). 2 volumes. Washington, D.C.: U.S. Government Printing Office.
——1983 Constitutional Amendments Relating to Abortion (Hearings), 2 volumes. Washington, D.C.: U.S. Government Printing Office.
Terry, Randall A. 1988 Operation Rescue. Springdale, Penn.: Whitaker House.