Last year, South Dakota came within one vote of passing a law that would have specifically forbidden abortion. Clearly, that law would have been enjoined by lower federal courts and then made its way to the Supreme Court. As currently composed, this present Supreme Court would undoubtedly deny certarari and allow the injunction that struck it down. But this court’s composition is about to change, and clearly that was one of the considerations by last year’s South Dakota sponsor.
Now we hear talk that either that state or another may pass such a law this year. In fact, the governor of South Dakota, Mike Rounds, who vetoed last year’s legislation, has publicly stated that if it looks good to him, he would sign it this year. The possibility that such legislation will be passed this year has produced a difference of opinion among pro-lifers.
First, we must make clear that the goal of such a bill would be the reversal of Roe v Wade. It would return the nation’s legal system regarding abortion to status quo ante, that is, the existing situation prior to that momentous decision. Prior to Roe v Wade, the federal government and its courts had no say in the abortion issue, which was entirely a state matter. The first legalization of abortion was done one state at a time. It only became a federal issue with the Supreme Court decisions of Roe v Wade and Doe v Bolton. In the event of a reversal, each state through its legislative body and courts would have authority to set the boundaries of abortion.
The big question is whether or not, for the pro-life movement as a whole, our goal of reversing Roe v Wade would be advanced or would be retarded if a state passed specific legislation forbidding abortion this year. Two sides in the pro-life movement are divided on this question. We have considered legal opinions opposing such legislation by three prominent and respected pro-life constitutional attorneys. They are Mr. James Bopp, Mr. Clarke Forsythe and Mr. Paul Linton. Their comments are clear, concise and cogent. Clarke Forsythe said, “Given the Supreme Court and the experience with the Federal Partial Birth Abortion law, the outcome of abortion prohibition bills in 2005 is certain. Federal Courts will immediately apply injunctions against the enforcement of such laws, Federal Appeals Courts will agree, the Supreme Court will deny review. The laws will never go into effect, and the state legislature will get an expensive bill from the ACLU. Prohibitions on abortion are clearly dead on arrival in 2005.” This clearly states what would happen to such a law if it faced federal courts at the district appeals and Supreme Court levels as currently constituted. While courts at these levels vary in their ratio of pro-life to pro-abortion judges, it is certainly fair to say that there is not a majority of pro-life thinking at the Federal District Court level or at most Appeals Courts at this time. Certainly there is not at the Supreme Court level.
Their cogent argument contrasts the original decisions with subsequent decisions. It notes that in the Roe decision, Justice Blackman was unsure when human life began. Mr. Linton very clearly reminds us of the recent Third Circuit judgment stating that abortion depends not on whether the unborn is a human (which it assumed was true) but rather, if the unborn child was a constitutional person. This was bad news. If the Supreme Court takes this same position, it makes no difference whether the developing baby is in fact a baby, human, alive, etc., from conception, for the Court would take the position that the biological facts are irrelevant. What is relevant is whether the court judges believe this living being is to be protected under constitutional law.
Another argument against passing such a law is that in being struck down, it would establish further precedent that would someday have to be overcome if and when abortion is ever again forbidden. The above Third Circuit opinion is a good example of this.
It is the opinion of these gentlemen that attempts to do this, and of course to follow it through the lower courts up to the gate of the Supreme Court, would waste limited resources. They state that such available resources in the pro-life movement would better be used to pursue the gradualistic legislative progress that has been made in the last decade. Examples of this are womens right-to-know laws, parental notification and consent laws, abortion clinic regulations, etc.
As noted in Forsythes statement above, such attempts and failures would enrich the pro-abortion movement. When such laws have been struck down, the courts have awarded very generous attorneys fees to the Anti Civil Liberties Union (ACLU) which has richly endowed their coffers. This certainly is a byproduct that no pro-lifer would want.
A less convincing argument offered is that it would undermine the political survival and credibility of those lawmakers who vote for it. And finally, they argue that such attempts would divide the pro-life movement. Let me answer these arguments one by one.
As to the court striking this down, there is absolutely no question that is what would happen if this law faced the Supreme Court with its current composition. The central argument opposing this, however, is obvious. There will be changes in personnel that will almost certainly be occurring now that Mr. Bush has been reelected for the next four years. It appears that Justice Rehnquist will step down soon. An informed guess would be that Mr. Bush might nominate a qualified Hispanic, such as Miguel Estrada. If approved, this candidate will not change the ideological composition of the court. Since we are still in the shadow of Bushs overwhelming election victory, the odds are this person will be confirmed. In addition, Thomas or Scalia may also be approved as Chief Justice.
When the next retirements occur, there will be vicious fighting. However, the numbers favor our side. It is more than wishful thinking to assume that by the time a law, passed in 2005, reaches the Supreme Court, there may well be a definitive change in the Supreme Courts make-up. It takes 2 to 3 years for a law to finally be brought before the Court.
Does precedent influence the Court? Yes, this is completely valid as long as the current court composition remains intact. But the Supreme Court has the power to overturn decisions and has done so. As a result, developments like the Third Circuit decision mentioned above, not withstanding the weight of precedent, do not govern here as the court can overturn them.
As to wasting limited resources, my response is, Have faith! This movement has experienced defeat. Pro-lifers have labored under periodic defeat for thirty-two years. Our movement has been judged dead on a number of occasions, but we still live.
Today a change in public opinion is slowly increasing. Major pro-life state legislation has a potential that should not be discounted. It can strike a flame of hope and enthusiasm within our pro-life troops and legislators. Moving in new directions energizes members in the organization, and even those who have doubts about the action become more actively involved. The pro-life movement does not have a limited amount of assets to be cut up like a pie. Its potential ultimately is unlimited.
Losing and thus enriching the ACLU by attorneys fees is not a first order of magnitude. We should not let dollar signs on their side or ours be a governing factor in our actions. Our main objective is to save babies, not limit the income of the ACLU.
Would it undermine the credibility and the political survival of those who vote for such a law? We would not deny that this might well injure some, but think of the legislators who vote against it. One could legitimately make a case that their credibility and political future would be further undermined by having to publicly admit their pro-abortion position. This cuts both ways.
Finally, would it cause division in the movement? This is self-evident. Last year South Dakota came within a hairs breadth of passing such a law. Upfront in opposition to it was a South Dakota State Senator who sits on the board of the National Right to Life Committee. He claimed sole responsibility for his position of opposing that pro-life law. The National Right to Life Committee, while denying their central role here, nevertheless did get credit in the minds of many groups for being the force behind opposition to that law. All of the above arguments against the bill were voiced. But to a great number of pro-life organizations these arguments were unconvincing. Justified or not, there is no question passing such a law will create controversy, but opposing it will result in a larger divide within the movement.
The fact of Bushs reelection, and that we are one year closer to realignment on the Supreme Court; the fact of Senator Daschles defeat and other developments all combine to shed new light on this argument, making this debate substantially different than it was a year ago. One final thought. Under no cirumstances should such a law punish the woman. She is the second victim. Punish instead the abortionist who took money in the cold light of day and killed her baby.
Let the pro-lifers of this country by all means pursue this debate with vigor.The arguments posed by the three attorneys above have great validity. However, they all rest upon the composition of the US Supreme Court when such a law reaches it. We know that legislation passed, at the state level, takes an average of 2 to 3 years to reach the Supreme Court. What will the high courts composition be when such a law does reach it? We do not know, but we have far more reason to hope optimistically for a friendlier court than a year ago.
However, we cannot let up in pursuit of our ultimate goal. To accept incremental steps along the way is a valid approach, which I have supported. I doubt that many today honestly subscribe to the hope that we can get a human life amendment in the present climate of this nation. Steps on the way are the way to go, but a giant step will be reversing Roe v Wade. A famous quote applies here: Better to have tried and failed than never to have tried at all. To fly in the face of an immovable object is foolish, but looking at this through todays perspective, the odds for success are quite tangible.
Lets by all means keep discussing this in a professional fashion. But, those of us here at Life Issues Institute feel the time is ripe to move forward with major pro-life legislation in the states.