Move over ERA. It’s time for the PRA — the Post-Roe Activation clause. Led by women with the courage to share their stories of profound grief and medical trauma that they suffered after they chose the “choice,” Louisiana has passed legislation to outlaw the human-rights violation known as abortion on demand. Governor Kathleen Blanco, a woman and a Democrat, signed the bill into law on Sunday. But the legislation has confounded abortion-industry lawyers who will not be able to follow their usual pattern of challenging the law in federal court the minute the ink on the governor’s signature is dry.
That’s because the bill, La. S.B. 33
by Senator Ben Nevers, has a Post-Roe Activation clause, meaning that the law goes into effect only when “[a]ny decision of the United States Supreme Court. . .reverses, in whole or in part, Roe v. Wade
,. . .thereby restoring to the state of Louisiana the authority to prohibit abortion.”
Far from being merely “feel-good legislation,” as some have understandably claimed, the following three points support the argument that Louisiana’s PRA legislation could be the embryonic stage of a winning strategy to usher in the restoration of respect for women and their unborn children in our nation’s law and policy.
First, the PRA bill gave state legislators the opportunity to speak about the issue of abortion in context of live legislation. The legislators in Louisiana realized that it is one thing to answer candidate questionnaires about their position on Roe, but quite another thing to struggle with the issue with the realization that they are crafting policy that will sooner or later go into effect.
The tears in the eyes of the I-thought-I’d-seen-it-all legislators best told the story. In the house and senate committee hearings, woman after woman shared their experience of how abortion had led them into a downward spiral of medical and psychological distress that had even impacted their ability to bond with their future children. The faces of the committee members hearing the post-abortion testimony revealed profound empathy and pain that was likely, in many cases, related to how abortion had negatively impacted their own lives.
Without the distraction of an immediate federal-court challenge, and armed with the realization that abortion has hurt all of us, Louisiana legislators, men and women alike, found it within themselves to stand at the well of the house and senate floors to speak their hearts and share their stories. Even with the delayed effective date, the legislators gave the bill no short shrift. In both chambers, the bill was debated for well over two hours, showing that these debates can take place in the statehouses of our nation rather than being relegated to rhetoric on talk shows and campaign stump speeches.
Second, the PRA clause takes away the disturbing prospect of having to pay taxpayer dollars to abortion-industry lawyers as attorney’s fees that would likely be awarded by federal courts after they strike the law down as being in conflict with Roe. That’s because at this point in time, even with the addition of John Roberts and Samuel Alito, we may be one vote shy of having the necessary five of nine votes on the Supreme Court to rule that Roe was an invalid exercise in judicial usurpation of the state’s legislative functions.
It’s just the brutal truth that we cannot outlaw abortion in the states without lining the pockets of abortion lawyers until we can replace one more justice who clings to the notion that the U.S. Constitution protects a right to destroy the least amongst us while at the same time facilitating the sexual exploitation of women. (After all, who benefits more from legalized abortion than unscrupulous men who can, without consequences, treat women as objects to use and be used, rather than persons created to love and be loved?)
But state legislators need not sit around and wait for the appointment of the fifth justice. Which leads to the third and last point. PRA legislation allows state legislators to act with the goal of creating an environment that reveals a growing political will to appoint and confirm that fifth Justice. Imagine the scenario of state after state holding committee hearings to consider what legalized abortion has done to the very women that were alleged to have been its biggest beneficiaries. Imagine the people in state after state standing up to proclaim that abortion is a crime against humanity that we will no longer endure. When a Supreme Court vacancy opens, the president and Senate would not have to read the tea leaves; rather, they could just look at the numbers of states who have enacted legislation evidencing their desire to restore the Declaration’s mandate to protect the inalienable right to life.
The bottom line is that PRA legislation is both prudent and proactive. It is pro-woman and pro-life. For those who respect and seek to protect the intrinsic value of every human life, perhaps there’s something to “feel-good” about in this legislation after all.
– Dorinda C. Bordlee & Nikolas T. Nikas are the founders of Bioethics Defense Fund, a public-interest law firm that advocates for human rights from beginning to end.