Washington is gearing up for another round of the "war on women," as lawmakers on both sides of the aisle filed briefs with the U.S. Supreme Court, which will hear oral arguments on Hobby Lobby's legal challenge to the HHS mandate in March.
The last time around, in 2012, partisan forces effectively re-framed opposition to both the contraception mandate and abortion as a "war on women." Will that strategy work again, or will those who view the mandate as a threat to religious freedom win this round?
In a column today in the Washington Post, Charles Krauthammer offered his strategy for diffusing the hysteria and winning the debate, with the mid-term elections looming ahead.
Be advised: some elements of Krauthammer's plan will not sit well with pro-lifers.
1. Stay on message.
Opponants of the HHS mandatae and abortion need to avoid making confusing, "weird" comments that light up the blogsphere in unhelpful ways. There may be a double-standard at work, but pro-life legislators need to accept that fact and stay on point. Krauthammer cites Mike Huckabee's recent remarks as a case study in what not to do.
2. Stick to policy.
"And there’s a good policy question to be asked about the contraceptive mandate (even apart from its challenge to religious freedom). It’s about priorities. By what moral logic does the state provide one woman with co-pay-free contraceptives while denying the same subvention to another woman when she urgently needs antibiotics for her sick child?"
3. On abortion -- seize the "high ground."
"Focus on the horror of late-term abortion — and get it banned.
Last year’s Kermit Gosnell trial was a seminal moment. The country was shown a baby butcher at work and national sentiment was nearly unanimous. Abortion-rights advocates ran away from Gosnell. But they can’t hide from the issue.
And the issue, as most succinctly defined by the late liberal Sen. Daniel Patrick Moynihan, is infanticide. Describing one form of late-term abortion known as partial-birth, Moynihan said: “I had once remarked that the procedure was too close to infanticide. And now we have testimony that it is not just too close to infanticide, it is infanticide.” How else to describe crushing the infant’s skull in mid-delivery before the head leaves the birth canal?"
4. Don't try to ban early abortions.
"Unlike late-term abortions, where there are clearly two human beings involved, there is no such agreement regarding, say, a six-week-old embryo.
There remains profound disagreement as to whether, at this early stage, the fetus has acquired personhood or, to put it more theologically, ensoulment. The disagreement is understandable, given that the question is a matter of faith.
This doesn’t mean that abortion opponents should give up. But regarding early abortions, the objective should be persuasion — creating some future majority — rather than legislative coercion in the absence of a current majority. These are the constraints of a democratic system.
Not so regarding a third- or late-second-trimester abortion. Here we are dealing with a child that could potentially live on its own — if not killed first. And killing it, for any reason other than to save the mother’s life, is an abomination. Outlawing that — state by state and nationally, as was done with partial birth abortion in 2003 — should be the focus of any Republican’s position on abortion."
Then, Krauthammer stepped back and explained how his approach would work in practice. Take Wendy Davis' filibuster and the battle to ban late-term abortions in Texas.
"A test case for this kind of policy-oriented political strategy is the governor’s race in Texas: Wendy Davis, the Democratic candidate, has a complicated personal history. Stop talking about it. (Her capacity for veracity is a legitimate issue, but for God’s sake why go into her parenting choices? That’s a snare and a distraction.) Talk policy — specifically, the issue that brought Davis to national prominence.
What was her 11-hour filibuster about? Blocking a state law whose major feature was outlawing abortions beyond 20 weeks. Make that the battlefield. Make Davis explain why she chose not just to support late-term abortion but to make it her great cause."
I agree with Krauthammer's prudent advice for lawmakers tempted to plunge into the HHS mandate or abortion debate without thinking through their message.
But what about his suggestion that pro-lifers should execute a strategic retreat from an absolutist position on abortion?
I believe it would be a mistake to follow his counsel. On principle, most opponents of abortion will reject that suggestion outright. And on a practical level. the steady inroads of pro-life legislators in parts of the country offer a compelling argument for staying the course. At the same time, we can certainly give priority to efforts that ban late-term abortion.
Krauthhammer suggests we follow the playbook for banning partial birth abortion, but pro-life Senate leaders who led that fight on Capitol Hill never argued that we should give up on overturning Roe. Rather, their effort was understood to be an incremental strategy for securing the ultimate prize. It was a two-track approach, and that strategy is still sound.
We will be hearing from others on this topic. And in the meantime, let's keep in mind that the public has begun to understand the threat posed by the HHS mandate, with polls signaling a shift in opinion.