South Dakota has enacted a ban on abortion except to save a woman’s life. Pro-choice forces in the state have not decided whether to try to repeal the law by referendum or to file a lawsuit in federal court. If the latter, the court will surely strike the law down as a direct violation of Roe v. Wade and its successor cases. And if the South Dakota ban does not reach the courts, Mississippi is likely to enact a nearly identical ban that could. Other state legislatures are considering their own bans.
We have mixed feelings about these laws. We share the pro-life objectives that animate them, but we doubt that they actually advance those objectives. Those objectives number three. The two ultimate objectives are expressed in the pro-life slogan that every child should be “welcomed in life and protected in law.” That slogan recognizes the dual injustice of unrestricted abortion: Killing unborn children is almost always unjust, and laws that treat that killing with indifference are also unjust. The more immediate pro-life objective is to create the conditions that would allow the achievement of those two goals. The chief precondition is the overturning of Supreme Court edicts on abortion. Those edicts mandate that abortion be legal throughout pregnancy.
Does the South Dakota ban, or the ban contemplated in Mississippi, advance any of those objectives? These laws set back the cause of overturning Roe. If they reach the current Supreme Court, a five-member majority of which is on record in support of Roe, they will elicit yet another re-affirmation of that decision. (We truly hope that our pro-life allies supporting these laws are not basing their strategy on the possibility of a change of heart by Justice Kennedy.) They could thus strengthen the felt force of the argument that Roe is a super-duper-precedent.
If another vacancy arises while these laws are working their way through the courts, their effect will be to make it harder to confirm a justice who might be inclined to be the decisive vote against Roe. As it is, too many people are under the impression that overturning Roe amounts to prohibiting all abortions. These laws will make it all the easier for NARAL to make that false equation. And they will shift the conversation from the subset of abortions that is politically hardest to defend (partial-birth abortions) to the subset that are among the easiest (abortions arising from rape).
Since these statutes are extremely unlikely to result in the end of Roe, they will not succeed in making the law just. And since the courts will probably quickly strike down these laws, they will not stop a single abortion either.
That’s 0 for 3. On the plus side of the ledger, the states will have communicated that resistance to the Roe regime is stronger than the conventional wisdom about its popularity would suggest. But that is not a sufficiently valuable benefit to make up for the damage these laws are likely to do to the pro-life cause.
“Making it easier for
pro-choicers to win the abortion wars
is not the right thing to do.”
Pro-lifers have gained ground over the last decade and a half by pursuing a savvy incremental strategy. That strategy puts the end of Roe within sight. If Roe falls, pro-lifers should then try to persuade the public in each state to prohibit most abortions. After that, they should try to persuade them to prohibit abortion in the case of rape and incest. To try to collapse this multi-stage process into an instant is to ignore social and political circumstances, and to throw away patiently and painfully won political victories for the sake of an emotional gesture.
The most effective response to Roe is not to pretend that it does not exist. Some of our pro-life allies who favor enacting these laws now–as opposed to waiting until Roe is gone–wave aside the practical objections by saying that it is never the wrong time to do the right thing. That is true. But making it easier for pro-choicers to win the abortion wars is not the right thing to do.
The pro-life legislators of South Dakota and Mississippi are being criticized on multiple, and sometimes contradictory, grounds. The national press has featured articles that accuse the South Dakotans of prohibiting emergency contraception (they didn’t), and articles that accuse them of being hypocrites for not prohibiting emergency contraception (they aren’t). Pro-lifers elsewhere, whatever their tactical disagreements, should fight these calumnies.
But pro-lifers who want to see their views prevail in American law, and not merely to feel good for a moment, should hope that when the lower courts strike down these laws, the governors of South Dakota and Mississippi will not appeal the cases up to the Supreme Court.