NRL News

Evaluating false claims that it makes no difference whether pro-life laws are passed or strict constitutionalists are nominated to sit on the Supreme Court

by | Oct 16, 2020

By Randall K. O’Bannon, Ph.D. & Dave Andrusko

Editor’s note. This appears on page 7 of the October digital issue of National Right to Life News. Please share the contents of this important edition with pro-life family and friends.

Every four years during a presidential election cycle, it shows up like clockwork. Some concerned pro-lifer writes to NRLC that abortions go up or down, independent of which party holds the White House, or even go so far as to claim they go down when there are Democrat Presidents.  

To make things worse, they argue that since Roe is still the law of the land, it makes no difference who is appointed to the Supreme Court. (Try making that latter point to the entirety of Senate Democrats who are desperate to keep Judge Amy Coney Barrett off the High Court.)

This is related to but differs from the “seamless garment” argument that abortion is important but only one of many issues. This assertion argues that having a Democrat in the White House may actually be good for unborn babies or at least have a neutral effect. 

In the end, however, more careful analysis validates common sense: the best way to protect unborn children is to elect a pro-life president.

The Role of Law

We are not saying, of course, that there are no other factors involved. Who would ever ignore the importance of women-helping centers, or the enormous impact of ultrasounds in vividly proving the humanity of the unborn child?

But there is a clear correspondence between the passage and application of legislation and the shape of the abortion curve.

Roe & Doe

There had been moves—some successful–to loosen state abortion limits in the late 1960s. But it was clear that the expansiveness of the  Supreme Court’s 1973 Roe v. Wade and Doe v. Bolton decisions simultaneously quashed any and all state abortion limits and legalizing abortion throughout the entirety of pregnancy for any reason, caught almost everyone off guard. 

Without any legal limitations and the political parties scrambling to develop and come to terms with their positions, abortions skyrocketed in the early years following Roe and Doe

In those first few years, there was some hope there might be a quick bipartisan legislative fix such as a constitutional amendment. Despite some heroic efforts, this was not to be. The hurdles—2/3rds approval in the Senate, ratification in three-quarters of the states—were too high. 

Hyde Amendment

The first piece of legislation that had a major pro-life impact was the Hyde Amendment, barring the use of federal funds to pay for abortion except when necessary to save the life of the mother. Passed in 1976 with bipartisan support, it did not go into effect until 1980 with the Supreme Court’s Harris v McRae decision.

It has been estimated that some 300,000 abortions a year (and rising) were performed using taxpayer funds before the Hyde Amendment went into effect. Though the precise form has varied, sometimes adding exceptions for rape and incest, the Hyde amendment has been renewed every year since. Though some states have picked up funding, the federal government has paid for only a handful of abortions under the law.

The 2016 Democrat party platform explicitly called for a repeal of the Hyde amendment and presidential candidate Joe Biden flip-flopped last year, announcing that he would endorse government funding of abortion.

The enactment of the Hyde Amendment corresponded with the sudden halt in the meteoric rise in abortions that occurred after Roe, leveling off increases that had been 6% or more a year before 1980. Notably, abortion rates and ratios, which had also jumped in the 70s, also declined throughout the 80s.

Parental Involvement

During that same time frame, the Supreme Court with Bellotti v. Baird (1979) and HL v. Matheson (1981), began to allow states to implement legislation requiring that the parents of minors consent to, or at least be informed about, their teen’s intent to abort.

Twenty-four states enacted parental involvement legislation between 1981 and 1992. During this time frame, abortions to women aged 15-19, which had been nearly 445,000 in 1980, the year before President Reagan took office, had fallen fell almost 295,000 by 1992, President George H.W. Bush’s last year in office. 

Teen abortions and abortion rates have been on a steady fall since the mid-1980s and have accelerated downward as more and more states have passed similar legislation. By 2010, teen abortions and abortion rates were only about a third of what they were in 1980. over that 30-year span, this group alone accounted for nearly 64% of the drop in abortions.

How much was attributable to changes in the law and how much to larger changes in the culture we can’t say definitively. But the timing and specific demographic impact do point to the laws having significant effect.

Informed Consent

The Supreme Court’s Casey decision in 1992 opened the door to informed consent legislation, where a woman considering abortion would be given information on fetal development and told of abortion’s risks and life preserving alternatives to abortion. Waiting periods to allow time reflection on the information were also allowed by that decision.

By 2018, twenty-eight states had effective informed consent statutes in place and twenty-nine had passed waiting periods.

Again, while absolute cause and effect are difficult to determine, it is interesting that abortions and abortion rates began some of their deepest and steadiest drops at this time. Guttmacher recorded 1,528,930 abortions in 1992 and an abortion rate of 25.7 abortions for every thousand women of reproductive age (15-44) as of July 1st that year. In 2017, after more than half the states had passed informed consent and waiting period legislation, the U.S. abortion rate dropped nearly half –to 13.5—and the number of abortions had decreased to 862,320—also a drop of almost half. 

Though many of these laws were passed by the states during the Clinton administration, it must be made clear there was nothing Clinton did to encourage such legislation. Whatever impact this legislation had, he could not legitimately claim credit for it.

Partial-Birth Bans & Other Legislation

Another piece of legislation conspicuously situated on the timeline is the ban on Partial-Birth abortion. Though not allowed to go into effect until the Supreme Court ruled the federal ban constitutional in 2007 in Gonzales v Carhart, efforts to pass such bans at the state and federal level first appeared in the mid-1990s. Attempts to secure passage os such legislation through the early 2000s served to stimulate national discussion on the nature, morality, and legality of abortion.

Though directly affecting only a portion of the abortion being performed, that a “procedure” which sucked out the brains of a still-living unborn baby partially delivered was legally being done at all was a shock to many Americans. 

How much the debate over this legislation is difficult to precisely determine. But note what Gallup reported: “It appears that partial-birth abortion became an important factor for Americans to consider when crystallizing their own positions on abortion”—that is, a large increase in the number of people who believed abortion should either be illegal in all circumstances or legal only in a few circumstances. Clearly, the intense debate helped contribute to the continuing drop in the number of abortion from the late 1990s forward.

Abortion advocates, while careful not to credit pro-life legislation as the main driver for recent drops, have lamented the recent surge of “more than 400 anti-abortion laws” (Nation’s Health, September 2019) and admitted that recent clinic regulations and requirements on abortionists ”played a role in shutting down abortion clinics in some states…” (Guttmacher Policy Review, 2019).

The Importance of Supreme Court Appointments

Precisely because of the way that law and legislation has affected public attitudes and behaviors towards abortion, the clearest way that presidents contribute to the rise or fall in the number of abortions is through appointments to the Supreme Court.

Abortion would not be legal throughout all nine months of pregnancy for any reason had not the Supreme Court, in a breathtaking show of raw judicial power, suddenly decreed it so on January 23, 1973.  

The rulings in Harris v. McRae (1980), Bellotti v. Baird (1979), and H.L. v. Matheson (1981), the cases which allowed the first limits on abortion, were close calls. 

Harris v. McRae, which held the Hyde Amendment and its limits on federal abortion funding constitutional, was decided by a 5-4 majority. Bellotti and Matheson, which first allowed parents to be involved in their minor child’s abortion decisions, were both 6-3 decisions, with a couple of justices giving only limited support.

Rust v. Sullivan (1991), the case allowing the government to prohibit abortion counseling and referrals among recipients of its Title X family planning program, was similarly decided by another close 5-4 decision, this time with three new justices appointed by Reagan supplying the margin.

Planned Parenthood v. Casey (1992) was a mixed decision, with different majorities voting to both uphold Roe and allow informed consent legislation. 

Yet without votes supplied by Reagan and George H.W. Bush appointees, states would not have been allowed to tell women of abortion’s risks, the basics of fetal development, and life preserving alternatives to abortion.

By contrast Ruth Bader Ginsburg and Stephen Breyer, appointed by President Bill Clinton in 1993 and 1994, respectively, were dependable votes preserving the legality of abortion, no matter how extreme.  Those two new justices supplied the margin needed to allow partial-birth abortions to continue in the court’s 5-4 Stenberg v. Carhart (2000) decision, the first case testing the constitutionality of that ban, in this case, a state law.

Seven years later, after two appointments by George W. Bush (John Roberts and Samuel Alito, both in 2005), the Supreme Court, in a 5-4 decision going the other way, held a federal ban on partial-birth abortion constitutional in Gonzales v. Carhart (2007).

Obama appointments in 2009 (Sonia Sotomayor) and 2010 (Elena Kagan) helped provide the margin in 2016’s Whole Woman’s Health v. Hellerstedt, a 5-3 decision disallowing the application of basic safety regulations on abortion clinics in Texas along with state requirements that abortionists have admitting privileges at local hospitals for any of their patients who might have complications.

Two new appointments by President Donald Trump–Neil Gorsuch (2017) and Brett Kavanaugh (2018)—merely replaced prior Republican appointees, and so were not enough to tilt the 5-4 balance of the court in June Medial Services LLC v. Russo, the 2020 case considering clinic regulations and required admitting privileges in Louisiana.

Shifting the court’s balance is difficult and the opportunity is rare. Most recent appointments have been those allowing a president to replace a justice chosen by previous president of his own party, largely maintaining the status quo on the bench.

This is why Trump’s nomination of Amy Coney Barrett to replace abortion stalwart Ruth Bader Ginsburg has the potential to alter the course of the Supreme Court’s jurisprudence on abortion for decades. 

Which to also why pro-abortion Senate Democrats and the Abortion Industry are so determined to smear Judge Amy Coney Barrett at every turn.


The rise and fall of abortions appear to correspond most neatly with the implementation of laws limiting abortion’s performance and promotion.  Abortion rates began to fall once the federal government cut off funds with the Hyde Amendment in 1980, with teens leading the decline once the Supreme Court allowed states to pass parental involvement laws in the decades that followed.

A big drop occurred in the 1990s once the court allowed states to pass informed consent legislation, assuring that women knew abortion’s risks, realistic alternatives to abortion, and the development of their unborn child. 

A ban on partial-birth abortion legislation, first attempted in the mid1990s, finally ruled constitutional in 2007, helped educate the public about the nature of abortion and the humanity of the unborn child, important information the abortion industry had never made clear to its clients. 

In all these cases, the composition of the Court was key. Had it been different, those laws would not have been upheld, partial-birth abortion would be legal, women would not be told the truth about abortion, parents would not be informed about their minor child’s abortion decisions, and the federal government would have been funding hundreds of thousands of abortions a year with taxpayer dollars.

And there would surely be thousands and thousands  more abortions being performed every year in the United States—many more unborn lives would be snuffed out.

The bottom line is that is does matter—enormously– to the babies who is elected president.