Someone’s overdosing on President George W. Bush’s reelection. There are, reportedly, plans afoot in some states to introduce bills prohibiting abortion in 2005. The old proverb “Zeal without knowledge is folly” counsels some rethinking here.
Such plans, however sincerely intentioned, are premature. They are the product of wishful thinking that disregards the reality in the Supreme Court today. Such bills will divide friendly forces, waste precious resources, and undermine the credibility and political survival of pro-life legislators in the states that consider them. And there are alternative policies, better calculated to make a positive difference in 2005.
The hostility of the current justices to strong pro-life legislation is plainly expressed in the Supreme Court’s most recent statement on abortion–the Carhart case in June, 2000. There, five justices–O’Connor, Souter, Ginsberg, Breyer, and Stevens–made clear that they strongly supported Roe v. Wade, and fiercely rejected the Nebraska prohibition on partial-birth abortion, in the belief that even restrictions on partial-birth abortion threatened Roe. Those same five are still on the Court today. And a sixth, Justice Anthony Kennedy, made clear that he supported Roe, even though he would have upheld Nebraska’s prohibition on partial-birth abortion.
But the rest of the story has not been widely told. When the Supreme Court struck down Nebraska’s law, it also struck down partial-birth-abortion bans in 29 other states. Those 30 states were forced to pay the fees of the abortion attorneys–reportedly totaling $6,000,000. Federal law requires that attorney’s fees be paid by the states to the attorneys for abortion clinics when they “prevail” in abortion cases.
So, Roe is still strongly supported by six justices and still controls lower federal courts. Just look at the current status of the federal partial-birth-abortion law. In October 2003–immediately after President Bush signed the bill–the American Civil Liberties Union, Planned Parenthood, and an army of pro-abortion attorneys filed legal challenges to the bill in federal courts in three states. Hostile federal judges immediately slapped an injunction on the president’s bill, preventing its enforcement. It has never gone into effect, and, if the Court applies its decision in Carhart, it never will (unless, per chance, the makeup of the Court changes before the cases get to the Court).
The Carhart case also emboldened federal judges to adopt a cynical attitude toward partial-birth-abortion bills and the government attorneys who defend them. Instead of viewing the bills as expressions of popular will, reflected in numerous public-opinion polls since 1995, federal judges dismiss them as political ploys. When a Justice Department attorney sought to defend the federal partial-birth law in the U.S. Court of Appeals in Chicago, one judge snidely asked, “and on this the fate of the Republic hinges?” Hostile federal judges will dismiss abortion bans with a laugh–and an attorney’s fees bill of, say, a half a million dollars per case.
Given the Supreme Court and the experience with the federal partial-birth-abortion law, the outcome of abortion-prohibition bills in 2005 is certain: Federal courts will immediately apply injunctions against the enforcement of such laws, federal appeals courts will agree, the Supreme Court will deny review, the laws will never go into effect, and the state legislature will get an expensive bill from the ACLU. Prohibitions on abortion are not carefully calculated, in light of current obstacles, but clearly dead on arrival in 2005.
And, contrary to myth, there’s no way to “force” the Supreme Court to hear any case. It has often refused to hear appeals in abortion cases, and this Court will never hear a case involving an abortion ban. Unless, of course, the six pro-abortion justices just want to reaffirm Roe again.
That’s the “law of unintended consequences,” which hovers over abortion litigation. And it could impact abortion-prohibition legislation in at least two ways.
First, bad precedent may be created by courts striking down abortion prohibitions that will make future efforts to change the law–perhaps at a future time with a different Court–more difficult if not impossible. Look, for example, at the recent case involving the original Jane Roe where the attempt was made to lift the injunction against the Texas abortion law originally imposed by the Supreme Court in Roe v. Wade. The federal district court quickly dismissed Jane Roe’s new case, and the federal appeals court–rejecting the need to even hear arguments–agreed. In the process, the federal appeals court issued the unfortunate opinion that abortion regulations enacted by Texas since Roe have implicitly repealed the pre-Roe abortion law still on the books. That decision is clearly wrong, and may not bind future state courts, but it sets forth a theory that could be used to overturn the pre-Roe laws still on the books in Texas and other states.
Second, more abortions might be committed in a state because the time spent on ill-conceived legislation will prevent good legislation from being passed. Bills prohibiting abortion in 2005 will waste limited resources, with no realistic hope of success, which could be applied to more promising bills that can clearly go into effect and have a positive impact. Legislators will miss opportunities to pass good legislation that will reduce abortion.
This is demonstrated by the analysis of Harvard-MIT researcher Michael New, published by the Heritage Foundation earlier this year. New observed that abortions declined by 17 percent during the 1990s, and New attributed that reduction to laws prohibiting public funding of abortion and laws requiring informed consent and parental notice or consent. In 2005, there will be a compelling need for abortion clinic regulations and laws to protect the rights of conscience of medical professionals.
Ill-conceived state bills also threaten the credibility and influence of pro-life legislators. The attorneys fees paid to the abortion attorneys will be paid by the state legislature, which will be used as a political issue against pro-life legislators and future legislation. Attorney’s fees are a risk to take when well-crafted legislation has a chance of being upheld, but not when the legislation is DOA.
These proposed prohibition bills may be driven by the persistent myth–contrary to mountains of evidence in numerous court cases over the past 30 years–that if Justices O’Connor, Souter, Stevens, Ginsburg, Breyer, and Kennedy are “just presented with the facts,” they’ll be struck by a revelation, admit their mistake, and overturn Roe. But the six suffer not from a defect of the intellect, but a defect of the will. Just read the thorough, detailed, clinical way in which five of those justices described the partial-birth procedure in their 2000 opinion in Carhart–before tossing it out. They know exactly what happens to the unborn child in abortion.
Under the right circumstances–with the right Court, at the right time, with carefully drafted bill–a novel test case might be prudent. It might even be said that the Carhart case in 2000 was a worthy educational effort, to bring the brutal facts of the reality of partial-birth abortion to the attention of the justices. But that obviously had little effect on the majority, since they described the procedure in coldly clinical terms and then casually dismissed the sentiment of overwhelming majorities of legislative representatives in 30 states.
At a time when Justice Department attorneys are desperately battling against hostile federal judges to find a necessary fifth vote on the Supreme Court to uphold the federal restriction on partial-birth abortion, a ban on abortion is clearly doomed. A ban in 2005 also makes the strategic mistake of claiming that something has been accomplished when nothing has been accomplished.
Bills prohibiting abortion in 2005 will do nothing more than fund the ACLU and Planned Parenthood, keeping them fully employed, paid by tax dollars, for years. The states might as well skip the litigation and just mail them a check.
–Clarke D. Forsythe is attorney and director of the Project in Law & Bioethics at Americans United for Life, Chicago.