President-elect Trump’s reconfirmation recently on 60 Minutes that he will nominate “pro-life judges” has sparked some unprecedented media focus on what will happen when Roe v. Wade is overturned. This focus is long overdue.
The notion of Supreme Court justices acting as public-health officials ranking the priority of abortion as health care, deciding what standards should apply to the practice in clinics from coast to coast, and deciding what credentials are suitable for abortionists would have astounded the great justices of the past. That’s why it has to be dressed up as some solemn “constitutional right” that obscures the Court’s actual role as the de facto National Abortion Control Board.
Justice Sandra Day O’Connor recognized what the justices were doing back in 1983, warning of “our continued functioning as the nation’s ‘ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States.’”
But no one should jump the gun. There are three huge political hurdles to the Supreme Court’s doing the right thing and returning the abortion issue to the democratic process in the States.
First, it will take at least the replacement of Justice Scalia (with a like-minded Justice), plus the replacement of one or two of the Justices — Breyer, Kennedy, Ginsburg, Sotomayor, and Kagan — who threw out health and safety standards for Texas abortion clinics last June, claiming the need for evidence of a public-health crisis in abortion clinics.
Second, the U.S. Senate, with a 52–48 (possibly shifting) Republican–Democratic split, will be a high hurdle when it comes time for a vote during the confirmation process.
Third, Planned Parenthood and 30 allied organizations, and their billionaire population-control funders, like George Soros and Warren Buffett, backed by numerous billion-dollar foundations, will all be working 24/7 to pressure the Senate and prop up Roe v. Wade, backed by a media bullhorn featuring all kinds of horrible myths about the implications. They will work to hide the reality that in the U.S. today, abortion is legal through all nine months of pregnancy, for any reason whatsoever, and sometimes with taxpayers’ subsidies, putting our nation in the company of North Korea, China, and Canada as the only nations that allow abortion for any reason after fetal viability.
But once those hurdles are overcome and Roe is overturned, there are three essential conditions that will maintain the status quo for at least the short term and ease the transition back to the states.
If Roe were overturned today, abortion would be legal in 40 to 45 states tomorrow, up to 20 weeks and possibly to fetal viability.
First, overturning Roe does not mean that the Court makes abortion illegal. Overturning Roe will return the issue to the states, where legislators can act in accordance with the views of their citizens. And no federal law exists that would make abortion illegal. (Congress might try to legislate a national law, but Congress’s constitutional authority to do so, in the absence of Roe, is doubted by legal scholars and judges.)
Second, if Roe were overturned today, abortion would be legal in 40 to 45 states tomorrow, up to 20 weeks and possibly to fetal viability, for the simple reason that there are no enforceable prohibitions on the books in those states before that time. The state legislatures and governors would have to act affirmatively. State regulations that are on the books on the day that Roe is reversed would likely be enforceable — parental-notice or consent laws, clinic regulations, etc. — subject to specific legal factors in each state that may prevent enforcement.
Third, women won’t be penalized. The actual practice of the states for nearly a century before Roe (1973) was to target abortionists (the actual practitioners) and to treat the woman as the second victim of abortion. The states will undoubtedly follow that effective practice when Roe is overturned.
What would the states actually do? Based on the data in Americans United for Life’s annual publication, Defending Life, and AUL’s Life List, showing how the states have legislated (or not) on the life issue for the past 40 years, a fair prediction might be that — in the short term — a dozen states would maintain abortion on demand, a dozen states would try to enact and enforce broad prohibitions, and about 25 states in the middle might try different limits.
That diversity is called federalism, a bedrock of the American constitutional system, which prevents Congress from dictating a single national law (in some areas) and leaves important issues to be decided at the local level, by local representatives accountable to the people at regular elections. It would be wise to leave the abortion issue to the states — where Americans can make their voices heard and where it was addressed since colonial days — unless 37 states act through constitutional amendment to enact a national rule.
In the meantime, the Court should delegate the broadest possible discretion to the states to address abortion, a serious public-health issue that state legislators and public-health administrators can handle better than unelected judges in Washington. A public-health crisis exists in America today as under-monitored, rarely supervised abortion centers operate as the red-light district of medicine.
Abortion advocates increasingly claim that abortion is the supreme “right” that has to be publicly funded and guaranteed by voters and their tax dollars. But consider the Second Amendment, containing the “right to bear arms,” which is actually protected by the text of the Constitution: Taxpayers don’t have to subsidize the purchase of guns or ensure that people drive less than 30 minutes to have “access” to a gun dealer. The existence of that express right does not include federal or state responsibility to facilitate a sale.
But public opinion has long shown that the majority of Americans have rejected an extreme view of abortion and want limits on abortion. As the National Abortion Control Board, the Court has failed to protect women and their unborn children from the dangers of abortion and the sometimes deadly conditions inside rarely monitored, poorly supervised abortion clinics. This dangerous public-health vacuum could be filled by the states if the Justices would get out the way.