Dare we think that in the not too distant future, Roe v. Wade will be corrected?
Let us assume that whoever almost-President Donald Trump appoints to the Supreme Court believes that unborn children have value under the law and merit the right to life. Or, at least, that Roe was decided wrongly.
A case then comes before the Court challenging the validity of Roe which has resulted in the deaths of nearly 60 million children within the wombs of their mothers.
First, some background regarding our anti-natal culture. As my former Family Research Council colleague Cathy Ruse and I wrote a few years ago, Roe “did not create a limited right to abortion but a virtually unlimited right to abortion throughout pregnancy.” Indeed, the Supreme Court
ruled that abortion must be permitted for any reason a woman chooses until the child becomes viable; after viability, an abortion must still be permitted if an abortion doctor deems the abortion necessary to protect a woman’s ‘health,’ defined by the Court in another ruling issued the same day as ‘all factors — physical, emotional, psychological, familial, and the woman’s age — relevant to the well-being of the patient’. In this way the Court created a right to abort a child at any time, even past the point of viability, for ‘emotional’ reasons.
Unrestricted access to abortion on demand became the national norm that grim day in January 1973. Under President Obama, that access became even easier: As noted by the director of FRC’s Center for Human Dignity, Arina Grossu, the Affordable Care Act (“Obamacare”) subsidizes abortion through a number of funding streams.
In 1973, the Supreme Court said the foundation of Roe is that abortion is an element of the “right to privacy.” The Court admitted that such a right was not explicit in the Constitution but only resident in a conceptual haze of implicational rights. Using that criterion, this “zone of privacy” should include my right to receive free Internet services, psychiatric treatment, multivitamins or anything else I can convince at least one federal judge is necessary for my well-being.
Justice Blackmun also noted that another reason for jettisoning all state laws against abortion “is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it.”
Interesting criterion. How about the distress to the child herself, dismembered without anesthetic in her mother’s womb? How about the distress of the couple who desperately want a child and are denied her because so few babies are available for domestic adoption? And how about the untold numbers of families which, thinking they are “unable” to rear a child, have been enriched and filled with love because the “unwanted” baby has become the apple of its eye?
It is my hope that these arguments will become, if not mute, at least dormant in light of a Supreme Court decision to bring legal sanity back to the jurisprudence of abortion.
So: Imagine it’s the first day of a post-Roe America. What then?
According the respected legal scholar Paul Linton, “the immediate impact of such a decision (overruling Roe) would be far more modest than most commentators — on both sides of the issue — believe.” According to Linton, “More than two-thirds of the States have repealed their pre-Roe laws or have amended those laws to conform to Roe v. Wade, which allows abortion for any reason before viability and for virtually any reason after viability.
Pre-Roe laws that have been expressly repealed would not be revived by the overruling of Roe. Only three States that repealed their pre-Roe laws (or amended them to conform to Roe) have enacted post-Roe laws attempting to prohibit some or most abortions throughout pregnancy. Those laws have been declared unconstitutional by the federal courts and are not now enforceable. Of the less than one-third of the States that have retained their pre-Roe laws, most would be ineffective in prohibiting abortions.”
Linton concludes that only seven states (Arizona, Arkansas, Michigan, Oklahoma, Texas, West Virginia and Wisconsin) “would be able to enforce their pre-Roe statutes prohibiting most abortions should Roe be overturned.”
At the same time, Tim Bradley of the Charlotte Lozier Institute notes that just four states have “enacted ‘trigger’ statutes that would prohibit abortion in the event that Roe is overruled: Louisiana, Mississippi, North Dakota and South Dakota. In Mississippi, however, the state Supreme Court recognized a constitutional right to abortion in the state constitution in 1998, meaning that its trigger statute will not be allowed to go into effect.”
Could Congress Prohibit Abortion?
Could Congress pass a law prohibiting abortion except in rare cases? Yes. But as Bradley observes, there is no guarantee that the Supreme Court would find such a law constitutional. If the Constitution is silent on abortion, its silence extends not only to acceptance of the procedure but also to rejection of it. In other words, it becomes a state issue.
It is also unlikely that there would be any quick enactment of a constitutional amendment to prevent abortion-on-demand. Amending the Constitution is a laborious process and given the passions aroused by the abortion debate, inclusion of a pro-life amendment in the Constitution is far from a certainty.
The Guttmacher Institute, once an adjunct of the nation’s leading abortion provider, Planned Parenthood, noted last year that “states enacted 334 abortion restrictions between 2011 and early July 2016. According to the analysis, the new laws account for 30 percent of all abortion restrictions since the U.S. Supreme Court ruled on Roe v. Wade in 1973.”
These state provisions include such things as banning dismemberment abortions (performed on fully-formed unborn babies), health regulations for abortion centers, and mandatory viewing of ultrasound photographs of their unborn children by women considering abortion.
These common-sense and compassionate provisions are partial steps toward a culture of life. But now is the time when pro-life leaders in all 50 states need to be planning how to safeguard unborn children and their mothers from a predatory abortion industry in a post-Roe America.
This should include a careful review of all existing state laws concerning abortion and what specifically needs to happen to build a wall of legal protection around women and their unborn little ones. This should take place even in states like California, Washington and New York, where the sanctity of unborn life is barely discussed in their statehouses.
Additionally, public persuasion is essential. Part of this is exposing the predatory nature of the abortion industry, as has been demonstrated by the gruesome Planned Parenthood videos regarding the sale of the body parts of aborted babies. The pro-life movement also needs to make strong public arguments about the injustice of encouraging women in crisis to abort their unborn children, as if the lives within them were similar to infected appendices or swollen tonsils. As has been said, women deserve — always deserve — better than abortion.
The late Dr. Mildred Jefferson, the first African-American woman to graduate from Harvard Medical School and a courageous champion of the unborn, said, “The fight for the right to life is not the cause of a special few, but the cause of every man, woman and child who cares not only about his or her own family, but the whole family of man.”
Now is the time for the right-to-life movement to think about our post-Roe strategy. The fight for the unborn and the women carrying them is one we must win. (For more from the author of “Pro-Lifers Should Start to Imagine What a Post-Roe World Would Look Like” please click HERE)