Law & the Courts

How Best to Protect Life

Governor Kay Ivey (R., Ala.) in Montgomery, Ala., May 15, 2019 (Office of the Governor State of Alabama/Handout via Reuters)

Nearly three decades after the Supreme Court declared it had settled the national abortion debate with its Casey decree upholding Roe v. Wade, tens of millions of Americans stubbornly continue to believe that each human being is endowed with the unalienable right to life at her creation, not her birth.

This month, elected representatives in several states have acted upon this foundational belief: The Michigan senate passed a bill to protect unborn children from second-trimester dismemberment abortions; Georgia outlawed abortion once a baby’s heartbeat is detected (about four weeks after conception); and Alabama enacted a law to protect the lives of almost all unborn children once pregnancy is detected (about two weeks after conception).

Federal courts, following existing Supreme Court precedent, will certainly strike down the laws in Georgia and Alabama. But the Supreme Court should not continue to hold that state laws regulating abortion are unconstitutional, for the two simple reasons identified by Justice Scalia in his Casey dissent: (1) the Constitution says nothing about protecting a right to abortion and (2) American society had long permitted states to ban or otherwise regulate it.

Today’s Supreme Court should acknowledge that it failed to settle the national debate on abortion. It should restore the right of the American people to enact laws protecting the lives of human beings who haven’t been born. It should finally act on the conclusion of Justice Scalia’s Casey dissent: “We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.”

All Americans who support the Constitution and the rule of law should favor dismantling an unjust and unconstitutional legal regime that imposes a policy of abortion-on-demand in all 50 states. The ultimate goal of all pro-life Americans goes beyond overturning Roe and Casey and merely returning the question to the states, of course: We work toward a society in which every child is protected by law and welcomed in life.

Lawmakers in both Georgia and Alabama were acting upon this sound principle, but because lives are at stake, sound principles and pure motives aren’t all that matter. Pro-life Americans should think long and hard about whether their righteous impatience is leading them to make imprudent mistakes that will ultimately set back the cause of protecting life.

The abolitionist zeal on display in Alabama in particular runs the risk of making the ultimate extinction of abortion less likely. No, contrary to some false reporting in the media, neither Alabama’s nor Georgia’s law would punish women who obtain abortions. (And Alabama’s law permits abortion in three circumstances: When a mother’s physical health is endangered; when an unborn child suffers from an anomaly that would cause its death shortly after birth; and when a psychiatrist certifies that the mother would likely commit suicide or kill her child without an abortion.) But unlike Georgia’s law, Alabama excluded a rape exception.

We have a good sense of what happens when the national debate focuses on banning abortion in this rare circumstance that accounts for less than 1 percent of abortions. In 2011 voters in Mississippi defeated an abortion ban that lacked this exception by 16 percentage points. In Alabama, laws can’t be repealed via a voter-driven referendum, but pro-life lawmakers should care about how their actions affect the cause of protecting life throughout the country. Nationwide, more than 75 percent of Americans think abortion should be legal early in pregnancy when the pregnancy was the result of rape. Public opinion cannot be ignored in a democratic republic, and it would be a grave error to insist that no lives should be saved until all lives can be saved.

This is an important question of tactics. It should not obscure the Supreme Court’s duty here, which is to allow states to practice democracy.


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