Last week the New York Times published a story about the Heartbeat Bill, which is causing some divisions in the pro-life movement in Ohio. This bill, which would ban abortions after a fetal heartbeat can be detected, is popular among pro-life activists and appears to have significant support in the Ohio state legislature. However, both the Ohio Catholic Conference and Ohio Right to Life, the state affiliate of National Right to Life, are not supporting the bill — fearing a legal setback.
It is always encouraging to see enthusiasm for a piece of pro-life legislation that, if enacted, would offer substantial legal protection to the unborn. That said, I would encourage pro-lifers to proceed with caution. First, the Heartbeat Bill, like any bill that would ban some pre-viability abortions, would almost certainly be found unconstitutional. Pro-lifers need to ask themselves if this is the right time and the right way to seek a Supreme Court reversal of Roe v. Wade.
Regarding the timing, Justices Scalia and Thomas have previously ruled that Roe was incorrectly decided, and while Justices Alito and Roberts have never ruled on the constitutionality of Roe v. Wade, many believe they would be sympathetic to state laws protecting the unborn. So Justice Kennedy would likely be the swing vote. Kennedy did rule in favor of the federal partial-birth-abortion ban in Gonzalez v. Carhart, but when presented with an opportunity to reverse Roe in the Planned Parenthood v. Casey decision, he declined to do so. So one can see why some pro-lifers want to wait until the composition of the Supreme Court changes before launching a direct legal challenge to Roe v. Wade.
Furthermore, a piece of pro-life legislation that enjoys broad public support or is popular among pro-life activists may not necessarily be the best piece of legislation to challenge Roe v. Wade. In his decision in Gonzalez v. Carhart, Justice Kennedy appeared to have found testimonies of post-abortive women persuasive. So if pro-lifers are seeking to challenge Roe v. Wade in the short term, they should consider using a bill that would let them most effectively highlight the regret that thousands of post-abortive women have faced. This might be the best strategy for winning the support of Justice Kennedy.
— Michael J. New is an assistant professor of political science at the University of Michigan–Dearborn and a fellow at the Witherspoon Institute in Princeton, N.J.