Ground shift in abortion law
The overarching argument about abortion that grabs the most attention is whether Roe is constitutional and whether it will stand much longer. What few journalists enter into is the projected thinking of what will happen when Roe is overturned. Abortion doesn’t get outlawed in the land overnight….or at all, at that point. It returns the matter to the states, where laws governing abortion were settled in the first place, before Roe.
Hadley Arkes puts this common sense framework together for a picture of the abortion divide that’s easier to see than the general swath of reporting on it.
The conservative lawyers have been content to argue that the Constitution itself says nothing about a “right to abortion.” In overturning Roe v. Wade, they would return the matter to the States. And there, before Roe v. Wade, most of the States were inclined to keep the protections for the unborn child that had been in place, as part of the common law, even before the American Revolution. But if the matter of abortion were returned now to the states, New York, New Jersey, California, Illinois and others are likely to enact laws on abortion that are quite expansive. And yet the epiphany waiting to be discovered is that even these states are likely to face some serious internal resistance if they sought to enact a right to abortion as sweeping, as unqualified, as the right to abortion that has been shaped by the Supreme Court.
That epiphany was activated with the recent Carhart ruling upholding the federal ban on partial-birth abortion, eloquently elaborated on by Justice Kennedy.
As we’ve seen with the federal law on partial-birth abortion, the sustaining of that law by the Supreme Court has provided both the cover and the encouragement for legislatures in the states to enact the same laws. And with that move, the legislators gain a critical practice in legislating again on abortion. Once the issue is opened, one step does indeed beget another.
Arkes does a quick review of how pro-life lawyers have been content to approach their work….until now. And at this point in the article, I’m thinking ‘It’s about time!’ because he nails a virtually unspoken and unidentified problem in the pro-life legal world.
The pro-life lawyers are still wringing their hands, calculating that they will need one more vote on the Court, one more retirement, before Roe v. Wade can be overturned.
That is what prevented the whole and powerful pro-life ‘world’ from uniting forcefully behind the South Dakota Women’s Health and Human Life Protection Law (better known as the abortion ban), which would inevitably head for the Supreme Court….this hand-wringing. These calculations somehow failed to see the picture already in place of the best environment pro-life forces have had since Roe — a pro-life president and a Supreme Court newly arranged with four strong justices in Scalia, Thomas, Roberts and Alito, and Kennedy on the fence since his near-overturn of Roe in the Casey decision, which he wants to correct (which he did in this Carhart partial-birth abortion decision). In addition, they had the first state legislature – in the bi-partisan South Dakota lawmakers who crafted the abortion ban – to declare in legislation that human life begins at conception and must be protected, along with women’s health, by the state.
If the pro-life world had been completely unified last year on the groundbreaking South Dakota legislation, it would have passed the referendum in November, which it nearly did anyway. Had the pro-life holdouts joined the campaign of spreading truthful information to thwart Planned Parenthood’s and NARAL’s campaign of disinformation about that referendum, it would have been enough.
But……it was only a setback, not an end. And Arkes’ article here on the partial birth abortion ban upheld by the Supreme Court explains how this changes everything, though abortion activists don’t want you to know that.
The holding in Gonzales v. Carhart was the narrowest of holdings: The Court mainly blocked the move in the lower courts to strike down laws on abortion in facial challenges. The holding may not work actually to save any lives. With this one grisly form of abortion barred, the abortionists may simply return to older, familiar methods of killing a child in the womb, whether by poisoning or dismemberment. But the decision of the Court was momentous, for it sustained the federal act as the second legislative act that would restrict abortions…
And yet even that modest bill, with that narrow holding, was quite enough to spook the partisans of abortion. They have seen, in Gonzales v. Carhart, a major step to the overruling of Roe. And that has spurred them now to seek legislation in the states to enact, in a statute, the rights of abortion articulated in Roe and its sequelae. But, as they do that, they would have brought about what the conservative lawyers have been proclaiming for years as their main, strategic objective; the objective for which they are still awaiting another retirement from the Court, and another battle over confirmation.
Follow the logic…
…Governor Spitzer in New York has declared his intention of seeking a statute to protect the right to abortion against a Supreme Court that can no longer be trusted. A similar move is afoot in Maryland, and we can count on the liberal chorus quickly picking up this tune.
But behold: With this panicky recoil from the holding in Carhart, the liberals are now behind the push to have the states start legislating again on abortion. With each move, they affirm the premise that the legislatures may indeed legislate on this subject. Their aim, of course, is to vindicate the right to abortion, but they will find that, as they try to shape that right, they will also be marking, unavoidably, the limits of abortion. And those limits, they will discover, will be drawn far less broadly than any “limits” that can be found in the law of abortion as it has been shaped by the federal courts.
That’s a critical point.
The champions of abortion rights fancy they are taking the initiative, resisting the Court that has been altered now by the presence of John Roberts and Samuel Alito. But in the face of these initiatives, the pro-life side might well bring back that old line from Br’er Rabbit in the Uncle Remus stories: “Please don’t throw me in that briar patch.” But, of course, Br’er Rabbit, in the briar patch, was in his element. For the liberals to bring the issue of abortion into the arena of politics, in the legislatures, is to bring us into the briar patch, where they are likely to suffer some disagreeable surprises.
Read the rest of the article, because it makes a good argument that the pro-life president could have and should have produced reasonable follow-up proposals on the heels of the partial birth abortion ban by the high Court. That he has not may not be a surprise, but it is disagreeable. To know all this is to be well prepared for this next presidential election.