Law & the Courts

A New Era for Abortion Law

Pro-life signs outside the Supreme Court, June 2014. (Reuters photo: Jim Bourg)
The progressives can no longer count on the courts.

Capitalizing on the shift in momentum brought about by the sweeping Republican victories in November’s elections, Ohio lawmakers last week passed two abortion-restriction bills: an act limiting abortion to before the 20th week of pregnancy (as some scientific studies have found that this is when a fetus can begin to feel pain) and a “heartbeat bill” preventing abortion after a fetal heartbeat can be detected, which usually occurs around the sixth week of pregnancy.

While conservatives rejoice at the possibility of progress toward a greater respect for and protection of unborn human life, progressives mourn what they see as a regression to an age of fewer “rights” for women. A New Republic piece this week pointed to Ohio as evidence of the impending reversal of Roe v. Wade, a reversal that would abolish the constitutional defense of permissive abortion rights and return the decision to the states. The New York Times editorial board, too, derided Ohio lawmakers for “rolling back abortion rights,” arguing that Ohio governor John Kasich’s decision to sign the 20-week bill violates the Supreme Court’s constitutional protections for abortion, at least prior to fetal viability.

Because of his concern that judges would rule against the heartbeat bill — similar measures in other states have been struck down by courts every time they were challenged — Kasich chose not to sign it. He noted in a statement that Ohio was likely to lose a lawsuit against the bill and that taxpayers would be required to cover legal fees. “Furthermore, such a defeat invites additional challenges to Ohio’s strong legal protections for unborn life,” he added.

Many recent polls show that the vast majority of the American people support placing some restrictions on abortion, contrary to the pro-abortion movement’s portrayal of any limitations as extreme and radical. Some of the most recent data shows that just under two-thirds of Americans support legislation prohibiting abortion after 20 weeks, including nearly 80 percent of Millennials. The New York Times’s David Leonhardt has acknowledged the fairly even split on this issue, writing that while a slim majority of Americans favor abortion access in the first trimester, the percentage opposed to abortion shoots up to 70 in the second trimester (about 20 weeks) and continues to rise for the later stages of pregnancy.

Kasich’s calculated decision to veto the heartbeat bill, along with the ongoing progressive uproar over his signing of the 20-week measure, raises an interesting question: What is the appropriate tactic for state politicians to use in opposing what they consider to be incorrect judicial (including Supreme Court) rulings?

Kasich’s argument against signing the bill is surely based on an accurate assessment of the facts; there is little to no doubt that it would be overturned by the courts after a drawn-out, costly legal battle. But is this a sufficient reason not to sign a measure that he knows would serve as a concrete step toward a moral end: the further limitation of a woman’s right to dispose of her living child? There is an argument to be made that Kasich could have signed the bill on the grounds that Roe was a flawed interpretation and application of the Constitution, even though the heartbeat bill would be invalidated by courts and couldn’t take effect in Ohio unless and until Roe was overturned.

Progressives have constructed their own worst nightmare by placing nearly unlimited power in the Supreme Court.

Furthermore, it’s worth noting that progressives have essentially constructed their own worst nightmare by placing nearly unlimited power in the hands of the Supreme Court. Their decades-long movement toward judicial supremacy has led to their current predicament, and now they face the potential collapse of Roe and its subsequent supporting decisions, the legal logic upon which the pro-abortion agenda rests. A conservative interpretation of the Supreme Court’s proper jurisdiction likely wouldn’t have yielded Roe’s outcome in the first place, but today it would prevent justices with a conservative worldview from imposing their opinions on the American people.

To achieve political ends, progressives turned to the Court for assistance, establishing and perpetuating the notion that justices ought to rule based on their personal ideologies, applying their unique perspective to any given case as if they were a small, unelected legislature. Because progressives — whether presidents through their appointments or justices through a “living Constitution” interpretation — slowly transformed the Court into a body that rules like a mini-democracy, it now can impose the view of its majority rather than determining what the Constitution actually intends.

The question in any given abortion-rights case should not be whether Justice Thomas or Justice Ginsburg is anti- or pro-abortion, nor should such a question be asked of any of Trump’s potential judicial nominees. Rather, justices ought to outline what they believe the role of the Court to be, and, within that view of the Court’s role, what they believe the Constitution maintains about the balance between protecting human life and preserving individual rights.

Take, for example, the recently deceased justice Antonin Scalia, who was strongly anti-abortion, but who believed it was the role of a Supreme Court justice solely to interpret and apply the words of the Constitution as they are written and as the Founders intended. In his dissenting opinion in 1992’s Planned Parenthood v. Casey, Scalia wrote that the question of abortion rights ought to be decided by the states or the people, not by the Supreme Court: “The States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so. The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”

#related#Though Scalia opposed abortion as a matter of policy, he refused to use his role on the Court to enforce that view, because he believed more strongly in the Constitution’s guarantee of federalism and representative government. This should be the case for all justices, in all cases. The responsibility for the fact that this is no longer the way the Court functions lies primarily — and perhaps solely — with progressive-minded justices and the activists and politicians who have supported them in this method of interpretation.

Since 1973, the Left has relied upon the courts to enforce a progressive view of abortion rights in lieu of convincing the public that such a radical view of abortion is best for society. Progressives will have no one to blame but themselves when permissive abortion “rights” are no longer imposed by the courts and most of the American people don’t mind.

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