Today, the U.S. Supreme Court chose not to review a case challenging an Arizona law restricting abortion after 20 weeks, which means a Ninth Circuit ruling striking down the law remains in place.
Pro-life activists working for 20-week abortion laws may be discouraged by the Court’s refusal to take the case, but they should not slacken their efforts. Rather, they should continue to pass 20-week laws and defend them in litigation until the Supreme Court takes a case and rules on the issue.
Opponents of 20-week laws argue that Supreme Court abortion precedents establish viability (usually around 24 weeks) as the point after which late-term abortion can be restricted; supporters argue the Court should clarify that its precedents allow for 20-week bans. If those precedents do not allow for the bans, supporters say, then they should be revisited.
The Supreme Court has never ruled on the constitutionality of restricting abortion after 20 weeks laws, and its decision today leaves the question open for further development in the lower courts.
Twenty-week abortion restrictions are based on scientific evidence that, by 20 weeks, the unborn child is capable of feeling pain, and interest in the laws has grown dramatically among the pro-life movement of late.
Last June, the U.S. House of Representatives passed 20-week legislation, 228–196. Similar legislation was introduced in the Senate, and it currently enjoys the support of 40 co-sponsors. And many states have passed their own laws: All told, the Charlotte Lozier Institute, where we write, counts 13 states that have passed legislation limiting abortion after 20 weeks. (Variations exist in how 20 weeks is measured and what exceptions are permitted, and 20-week laws in two of the 13 states predate Roe v. Wade.)
Underlying the debate about 20-week laws is the fact that, for more than 40 years now, the abortion issue has largely been removed from the democratic process. In Roe v. Wade and cases that followed, the Supreme Court has imposed its own abortion regime on Congress and the states that permits restrictions and regulations on the margins, but largely suppresses efforts democratic efforts by free citizens with a different vision to protect unborn life.
The kind of naked judicial supremacy imposed by rulings such as Roe can be almost unbearably frustrating to citizens who wish to work for different outcomes through the political process. Citizens who do support legal abortion can also feel just as frustrated if they don’t support the idea of nine unelected justices (and sometimes just one, if the Court is closely split) making social policy for the nation.
But the 20-week effort demonstrates that decisions such as Roe need not thwart political activism. The approach of those advocating for usch laws is very much in the spirit expressed by two great American leaders, President Abraham Lincoln and Edwin Meese III, who served as attorney general during the Reagan administration.
In a speech delivered in 1986 at Tulane University, General Meese discussed how Lincoln, then a candidate for the U.S. Senate in Illinois, responded to the Supreme Court’s infamous Dred Scott decision. In that case, Meese explained, the Supreme Court ruled that “blacks could not be citizens” and thus were ineligible “to enjoy the constitutional privileges of citizenship.”
Although Lincoln opposed the Dred Scott decision, he did not ignore the deference due to rulings of the Court in our system of laws. “We do not propose,” Lincoln said, “that when Dred Scott has been decided to be a slave by the court, we, as a mob, will decide him to be free.”
But Lincoln refused to accept the Dred Scott decision as a political matter. In Lincoln’s words, “we nevertheless do oppose that decision as a political rule which shall be binding on the voter to vote for nobody who thinks it wrong, which shall be binding on the members of Congress or the president to favor no measure that does not actually concur with the principles of that decision.”
What Lincoln’s response teaches, Meese said, is that “we as citizens may respond to a [Court] decision we disagree with. As Lincoln in effect pointed out, we can make our responses through the presidents, the senators, and the representatives we elect at the national level. We can also make them through those we elect at the state and local levels.”
Meese later wrote a piece responding to criticisms of his speech, explaining that “the process of debating, litigating and legislating in response to a constitutional decision one thinks wrong has been an important part of our legal tradition. It has been used by political liberals and political conservatives alike.”
Of course, this process requires prudence. As Meese explained, “One obviously does not undertake the task of litigation lightly; there should be plausible reasons for believing that at some point the court might change its mind. Similarly, in respect to a legislative response, no one argues that it is sensible to pass another law exactly like one voided by the court.”
However, there is, as Meese explains, a distinction between the Constitution and court cases interpreting the Constitution. Changing the Constitution requires an amendment. The Supreme Court can change and has changed its mind on its own. Lawsuits challenging new legislation “can help clarify the law by better defining its edges” and also “give the court an opportunity for rethinking a previous holding.”
None of this is to suggest that it would be appropriate to defy Supreme Court rulings. As Meese explained in his follow-up piece, “Constitutional decisions by the court are not ‘the supreme law of the land’ in the sense that the Constitution is. But they are law, as I said at Tulane, and they are the law of the land in the sense that they do indeed have general applicability and deserve the greatest respect from all Americans.”
Indeed, Meese specifically allowed that Roe v. Wade, “a decision with which I do not agree . . . [not only] struck down Texas abortion law, but also contained a principle that officials in other states were obliged to apply.”
However, “legislators are acting properly when they seek to enact new law of sufficient difference that it might pass constitutional muster in the Supreme Court.”
That’s exactly what 20-week supporters are doing.
While respecting the place of judicial review in our system of laws, pro-life citizens and lawmakers have refused to accept the viability of the unborn child as a “political rule” determining when late-term abortion may be restricted. Instead, they have identified a new law – one designed to protect pain-capable children from being torn apart in their mothers’ wombs – that will provide the Supreme Court with an opportunity to “better define the edges” of its abortion case law and even to “rethink” some of its previous holdings.
In continuing to pass these laws and eventually returning to the Court for a decision, 20-week supporters will be acting within time-honored traditions of the American legal system. We think Lincoln would be proud. And we know General Meese will be, because he is one of the lawyers who signed the petition asking the Supreme Court to review the issue in the Arizona case.
— Chuck Donovan is the president of the Charlotte Lozier Institute in Washington, D.C., and Tom Messner is a legal-policy fellow at the Institute.