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America After Roe?

ve8QAd   |   October 23, 2018


What could America look like if abortion on demand was no longer the law of the land? With the nomination and confirmation of constitutionalist judges, there is increasing hope that the policy of unlimited abortion nationwide will come to an end.

In Roe v. Wade and its companion case, Doe v. Bolton, seven male U.S. Supreme Court justices swept away laws protecting life in all 50 states, legalizing abortion through all 9 months of pregnancy. The Court denied that “legal personhood” extended to the unborn and enshrined the so-called “right to abortion” as a right protected by the Constitution.

In Planned Parenthood v. Casey (1992), the Supreme Court reaffirmed the fundamental holdings of Roe. Though the Court allowed state and federal legislatures to enact limited protections for the unborn, the majority opinion by Justices Kennedy, O’Connor, and Souter nevertheless declared “a woman’s right to choose to have an abortion before fetal viability and to obtain it without undue interference from the State.”

The impact of President Trump’s judicial appointments, however, could markedly alter the Court’s abortion jurisprudence. No one can predict the future, but a re-shaped Supreme Court could change the status quo of Roe v. Wade.

And Americans want change: of those who have an opinion on abortion, 58% want to see abortion policy created by their elected representatives rather than imposed on the nation by judicial fiat.

Polls consistently demonstrate that how we treat unborn children isn’t settled in the hearts and minds of the American people. Recent Gallup polls found that an overwhelming majority of Americans (68 percent) want abortion to be illegal in some or all circumstances while just 29 percent embrace radical abortion on demand policies. Seventy-eight percent of Millennials, 70 percent of African-Americans, and 57 percent of Hispanics support limiting abortion after 20 weeks.

Responding to Americans’ pro-life views, state legislatures have passed hundreds of pro-life bills in recent years.

To date, twenty states have passed the Pain-Capable Unborn Child Protection Act to stop abortion after five months. In 2017, state legislators approved more than 50 bills that added protections for the unborn. Wyoming passed its first pro-life legislation in 28 years, which requires abortionists to tell women they can see an ultrasound of their baby and hear their baby’s heartbeat prior to the abortion decision.

This year, major pro-life legislation passed in the states includes an Iowa law protecting the unborn from abortion after the detection of a heartbeat, a ban on abortion after 15 weeks in Mississippi, and an Ohio law prohibiting abortion after a fetal diagnosis of Down syndrome.

Unfortunately, some of these laws are not being enforced and are currently pending review in the courts. But a future decision issued by the Supreme Court on just one of these cases could reverse the last 40 years of extreme abortion jurisprudence.

A Post-Roe Roadmap

What would happen if the Court gave states the freedom again to make laws that could protect life in its earliest and most vulnerable state?

Around two-fifths of the states are legally prepared to keep abortion on demand. California, Maryland, Connecticut, Delaware, Hawaii, Maine, Oregon, Nevada, and Washington have laws legalizing abortion. In other states such as New York and New Jersey, abortion will almost certainly remain virtually unlimited due to the number of pro-abortion elected officials currently in office.

Ten states are legally positioned to strengthen protections for unborn children. Twelve states that had bans on abortion prior to Roe could be reinstated.

Louisiana, North Dakota, and South Dakota have “trigger laws” that would prohibit abortion immediately should Roe be overturned. Mississippi also has such a law, but it would not go into effect because, as former Charlotte Lozier Institute research assistant Tim Bradley writes, “the state Supreme Court recognized a constitutional right to abortion in the state constitution in 1998.”

In the remaining states, there is likely to be a vigorous debate – previously impeded by Roe – to find consensus on how to protect unborn children and their mothers. Laws enforcing previability bans, prohibiting sex selection abortions, and banning abortion once a heartbeat is detected are just a few examples of the kinds of pro-life laws that could flourish in these states.

A hallmark of a democratic nation like the United States is the ability of a free people to engage in civil debate and come to a consensus on policies that affect them. Relying on the principle of government by consent distinguishes the Pro-life Movement from pro-abortion activists, who depend on unelected judges to impose their radical policies on the entire country.

Should the judicial monopoly on abortion fall, Americans will be confronted with the realities of abortion and be compelled to discuss fundamental questions concerning when babies should be protected during pregnancy. With the help of a rich and deep pro-life education that organizations such as Life Issues Institute and Charlotte Lozier Institute can provide, Americans will be more informed during these debates. When they learn the truth of what abortion really is, we are confident that more and more Americans will be persuaded to choose life.

As our pro-life President Donald Trump appoints more judges to the federal bench and the Supreme Court, the scourge of abortion on demand could very quickly fall away. Getting judges out of the legislative process and allowing the people to guide the lawmaking process will give hope to millions of moms and babies, sparing families from the grief of abortion.

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