Law & the Courts

Alabama and Georgia Are Throwing Down the Gauntlet against Roe. Good.

Pro-life marchers rally at the Supreme Court during the 46th annual March for Life in Washington, D.C., January 18, 2019. (Joshua Roberts/Reuters )
For two generations the Roe decision has distorted American politics. Now the states are fighting back.

We are witnessing the beginnings of an anti-abortion legislative revolution in Red America. Two generations of pro-life activism, persuasion, and argument have yielded pro-life supermajorities in state houses across much of the South and Midwest, and they recognize the fact that we have reached a moment of legal possibility we may never attain again — perhaps not for generations. It is possible (maybe not likely, but possible) that the Supreme Court could overrule Roe v. Wade, and these legislatures have chosen to go for broke.

Good. While Alabama governor Kay Ivey ponders whether to sign Alabama’s bill banning all abortion in the state, it’s worth considering why this represents an important moment in the battle for life in the United States, why Alabama’s bill (and Georgia’s new heartbeat law) present the right kind of legal and philosophical challenge to Roe, and why now is exactly the time to make the challenge.

Both Alabama’s abortion ban and Georgia’s heartbeat law contain a key provision — they declare the personhood of the unborn child. This is a vital measure that is aimed directly at a key portion of the Roe v. Wade opinion. Late last week, I had a lengthy phone conversation with state representative Ed Setzler, sponsor of Georgia’s legislation. He said his bill wasn’t “waving its fist at Roe; it’s answering Roe.”

Specifically, he pointed at a provision in Part IX of Justice Blackmun’s opinion, where Blackmun states that if the “personhood” of the baby is established, then the pro-abortion case “collapses.” The late Supreme Court justice was of course discussing the definition of personhood under the federal constitution. Setzler, however, notes that Supreme Court doctrine has long allowed states to expand constitutional liberties. They can establish standards of religious freedom, free speech, or due process, for example, that go beyond the First and Fifth Amendments. They cannot be more restrictive than the federal Constitution.

In the abortion context, this doctrine traditionally has been interpreted to allow states like New York to protect abortion rights beyond the minimal threshold required by Roe and Planned Parenthood v. Casey. Georgia (and potentially Alabama) would be asking the Court to permit them to expand the constitutional liberty of the unborn child and to recognize the distinct human identity of the baby in the womb.

In other words, Georgia and Alabama are saying: “We’ve read Roe, and we’re making the very legal statement that Justice Blackmun says would fundamentally undermine the case for abortion. Under our federal system, we can expand the legal definition of life.” While pro-life Americans can and do engage in good-faith debates about tactics, I prefer the most direct approach. Tell the Court what life means. Make the Court break the federal system once again.

The timing is right. For two generations the Roe decision has distorted American politics. Millions of voters cast their ballots for president primarily to influence that president’s judicial picks, and there is now a majority of justices on the ballot picked by presidents who openly ran on a pro-life platform. Donald Trump would still be the Apprentice host but for his pro-life pledges. Have 20 years of political activism been in vain? Have federal elections polarized to the point of mutual partisan hatred merely to decide whether doctors must have admitting privileges at a local hospital before they kill a child?

It’s worth knowing where the justices stand, and either way a decisive ruling has the potential to deescalate national politics for a generation. If the court overturns Roe, rightfully holding that the federal constitution is silent on abortion, then the battle turns to the states. In many respects local politics would rise in importance relative to national politics, and Americans would be able to express their fundamental values through the ballot box.

If, however, Roe is upheld and the legal battle over abortion is reduced — both now and for the foreseeable future — to fights over far-more-marginal issues like admitting privileges, clinic regulations, and late-term abortion bans (that apply only to a small minority of abortions), then pro-life Americans would understand that presidents and judges have treated them like Lucy with the football: inducing them to vote on the issue that is more important to them than any other, only to protect the status quo. No longer could (or should) these Americans be manipulated into voting for candidates based on false promises. Instead, they could fundamentally reorient their strategy and resources away from the men and women who’ve failed them time and again.

Yes, I know that in theory the justices could overrule Roe through, say, an admitting-privileges case. But why would they? It’s axiomatic that when given the choice between broad and narrow rulings, the justices tend to default to the narrow. If the justices are unlikely to overturn Roe, they are especially unlikely to overturn while upholding an incremental law. After all, each and every incremental law the court is likely to review can be upheld without reversing Roe or Casey. The Court can simply redefine Casey’s “undue burden” standard to permit late-term abortion bans or modest clinic regulations. In the absence of a bill that’s incompatible with Roe, state attorneys general challenging Roe would be asking the Court to be bolder than their own legislatures.

Finally, moral declarations have their own value, and through a combination of heartbeat bills and trigger bills (which dramatically restrict abortion in the event Roe is overturned), in recent months the elected representatives of voters in Ohio, Kentucky, Tennessee, Georgia, Mississippi, and now Alabama have decisively rejected the vast majority of abortions performed in their states. They have cast their lot on the side of life. They have decisively and dramatically illustrated how Roe has inflicted a serious injury on American federalism and American democracy.

A judicially invented “right” is damaging the very fabric and premise of our constitutional republic. It’s time for another fundamental challenge to the “right” to kill a child. Georgia has thrown down the gauntlet. Alabama may follow suit. Their laws represent the next righteous and prudent step in the fight for life.

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