What Would It Take to End Legal Abortion in the US?

It is my firm conviction that government, which exists to protect human rights, has an obligation to protect human life at all stages of development, from conception to natural death. Under current policy, the federal government of the United States not only refuses to protect unborn human life, but it also actively prevents the governments of its fifty states from doing so. How did we get here, and what would it take to change this situation from a legal standpoint?

It was not a federal law, passed by Congress and signed by the President, that brought about this state of affairs. It was, rather, the action of the Supreme Court in 1973 with respect to a state law (in the state of Texas) that restricted abortion. Even though the Constitution nowhere mentions abortion, the Supreme Court determined in the case Roe v. Wade that the government has no right to interfere with the decision between a woman and her doctor to abort her unborn child during the first trimester (3 months) of pregnancy. In the second and third trimesters, some state regulations were allowed by the Supreme Court, even including the outlawing of abortion after the viability of the fetus (during the 3rd trimester), but these regulations were held to be unconstitutional if the mother’s life or health were threatened by the continuation of the pregnancy. It is here that the companion case Doe v. Bolton, handed down on the same day as Roe v. Wade, becomes very important. In the Doe v. Bolton case, the court defined a mother’s “health” so expansively that the concept encompassed psychological, economic, and relational dimensions. Of course, virtually every pregnancy has a major impact on at least one of these dimensions of life, which means that a doctor could have little trouble affirming that any given pregnancy represents a threat to the “health” of the mother, justifying the need for an abortion in the later stages of pregnancy and (according to the Supreme Court) removing any right of any state to intervene to prevent an abortion in that case.

So the bottom line of these two companion cases (and further developments in subsequent court cases) is well stated by Francis Beckwith in Politically Correct Death:

It is safe to say that in the first six months of pregnancy a woman can have an abortion for no reason, but in the last three months she can have it for any reason.

We live in one of the few countries on earth that essentially operates by an abortion-on-demand legal policy. This is the greatest moral atrocity of our age.

What will it take in the legal arena to change things? I think of the process as having four stages:

(1) The passing of laws that restrict abortion within the framework of Roe v. Wade

We should not assume that no progress can be made so long as Roe v. Wade remains the official standard for federal government policy. Both at the state and federal level, laws have been proposed, and some have passed, that curtail the practice of abortion around the edges. For example, in 2003 Congress passed a federal ban on the practice known as “partial-birth abortion,” a procedure that involves partial delivery of the child prior to the termination of its life. This ban, having been vetoed twice by President Clinton in the 1990’s, was signed into law by President George W. Bush. It remains a federal law to this day.

(2) The overturning of Roe v. Wade.

Just as the Supreme Court has overturned its own previous rulings before (e.g., the Dred Scott case), so we hold out hope that one day the Roe v. Wade decision will be overturned. Such an act would require a majority of Supreme Court justices who interpret the Constitution, not as a “living” document (whose meaning can change with the times), but rather according to its original meaning. By this standard of interpretation, the Constitution says nothing about abortion and cannot be legitimately construed as recognizing a right to an abortion among citizens of the United States.

If you have ever been tempted to think that presidential elections do not matter, at least when it comes to the issue of the sanctity of life, you should consider the fact that presidents nominate justices to the Supreme Court. In the time in which we live, it has become a virtual certainty that a Democratic president will nominate only potential justices who would affirm Roe v. Wade. It is at least possible, though not certain, that a Republican president will nominate potential justices who would overturn it. As of the day I am writing this, the court currently has five justices who would likely uphold Roe v. Wade (at least one of whom seems likely to retire during the term of the next President), three justices who almost certainly would overturn it, and a vacancy (left by the late Antonin Scalia) to be filled later, possibly by a nominee of the next president. Presidential elections matter.

(3) Abortion restrictions in the states.

Although the overturning of Roe v. Wade would be a day to celebrate, we should not assume that it would resolve the abortion issue. If that day ever comes, it will mean that the federal government can no longer restrict the abortion laws of individual states. But it would not dictate to the states what their laws should be. Some states already have laws restricting abortion on the books (that cannot be enforced currently because of Roe and Doe), laws that would go back into effect. Other states would likely introduce new laws. Conservative states would be likely to place more restrictions on abortion, and liberal states would be likely to leave policies in place similar to the decisions of Roe and Doe. The bottom line here is that, should the great victory at the Supreme Court ever come, pro-lifers need to understand that the real fight to defend unborn life will have only just begun. It will have to be fought state-by-state after that.

(4) An amendment to the Constitution of the United States.

The only way to ensure a nationwide restriction on the practice of abortion is to amend the Constitution of the United States, explicitly defining unborn human beings as persons who receive legal protection. The process for doing so is a difficult one and requires a very high threshold of support: two-thirds of both houses of Congress must vote to propose such an amendment, followed by ratification by two-thirds of the state legislatures. In the current political climate, such an act seems impossible.

But we must not give up hope. There was a day when the abolition of race-based slavery in the United States seemed an impossible dream. Today the institution of slavery has become a distant memory. May all who stand for the sanctity of life continue this fight, as long as we are able.

And I want to add one more clarification here at the end. I believe that the pro-life cause must be happy with incremental progress, because the alternative is no progress at all. So, while I believe that no exceptions should be made for abortion in the cases of rape and incest (after all, the children produced by such acts are innocent!), I nevertheless recognize that, if we could outlaw all abortions except in cases of rape, incest, and for the protection of the mother’s life, we would eliminate almost all abortions. Politically, therefore, I would support any legislation that could reduce the number of abortions, even if it didn’t express my own personal convictions on the matter perfectly. Though some in the pro-life camp may disagree, I believe this is the way the political battle must be fought.


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