The estimable Hadley Arkes can perhaps be faulted for giving false hope to pro-lifers when he says that if the Supreme Court upholds the federal Partial-Birth Abortion Ban Act this term, it will put Roe v. Wade on the path to becoming obsolete. I disagree; there is no necessary link between "regular" abortion and the neo-infanticidal barbarity of partial-birth abortion. Even if there were, the example of federally funded abortion counsels against accepting Arkes' hopeful conclusion.
As readers of FIRST THINGS will recall, in Maher v. Roe the Supreme Court upheld Congress' denial of federal funds to pay for abortions for women who cannot afford them. And yet Roe v. Wade was not weakened noticeably, if at all, despite the fact that, in the very reasonable opinion of writers such as Laurence Tribe and Ruth Bader Ginsberg, there is a clear connection between the right of access to abortion that is guaranteed by Roe and a constitutionally protected access to federally funded abortion in some cases.
Hadley Arkes replies:
The concerns raised by Mr. Zaretzke can never be out of season, though I think I encompassed them in my piece. Still, he offers us the occasion to get clear again on the possible gains--and the deep disappointments--that may spring from this case before the judges on partial-birth abortion. I think I had brought out the levels of disappointment as precisely as the possibilities for a breakthrough in the pro-life cause. But let me add an item that would bolster Zaretzke's argument: In the oral argument before the Supreme Court, the solicitor general, Paul Clement, put the accent on the things that separated the gruesome "partial-birth abortion" from other forms of abortion. His pitch to the Court, as Zaretzke fears, was that the restriction on this procedure could be sustained without threatening the vast number of abortions that are typically ordered and performed. That was something to be said by an advocate in making the case; and yet it warred with the common sense of the matter on both sides. The pro-lifers did not seek to rule out only this form of abortion; they had sought to plant a premise that could be extended to cover other abortions, even earlier in a pregnancy. And the truth that dare not speak its name was that, on any scale of the gruesome, partial-birth abortion was hardly much different from the dismemberment of a child that forms the daily experience of abortion in America.