Pro-life lawyer: I want abortion abolished, but direct challenges to Roe hurt our cause
Most state legislatures convened this month and, as states react to the abortion policies passed in 2019, more bills expanding or eliminating protections for abortion will likely be filed across the country.
The most extreme will be bills likely patterned after New York’s Reproductive Health Act, abolishing legal protections for virtually all viable unborn children — children who could be safely delivered and placed with adoptive families instead of aborted by mothers who reject them.
Bills seeking to criminalize abortion may also be filed. These bills are supported by groups identifying as abortion abolitionists. While I share the supporters’ desire to protect all unborn children from abortion, these efforts will prove legally ineffective and politically harmful.
Even if passed, bills that assert a state’s right to ignore Supreme Court rulings have no chance of going into effect, since they would be unconstitutional under current judicial interpretation of the U.S. Constitution. Supporters of nullification know this but believe that such legislation is necessary to challenge Roe v. Wade, a 47-year-old Supreme Court opinion finding a right to abortion in the Constitution’s “penumbra." They are wrong.
How pro-life losses strengthen Roe
Such legislation is not necessary to challenge Roe. More than 200 members of Congress filed a brief asking for the reversal of Roe in a case from Louisiana before the Supreme Court, June Medical Services LLC v. Gee.
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Roe itself did not start out as a case seeking to constitutionalize abortion. It was initially accepted to resolve a procedural question about the power of federal courts to interfere with state criminal prosecutions, but for some intracourt intrigue the ruling should have been limited to that question, according to analysis of the justices' private papers by Clarke Forsythe, senior counsel at Americans United for Life.
Planned Parenthood v. Casey, where the justices considered reversing Roe, involved health department reporting requirements, parental and spousal consent, and other regulatory laws. The fact is that any case involving abortion allows the Supreme Court to reconsider and reverse the holding of Roe.
I have spent most of my adult life drafting, supporting and litigating abortion legislation. I am convinced that we gain little by a frontal attack at this time. Every case we lose further entrenches the judicially created myth that abortion is a constitutional or, even worse, a human right. Every case we lose enriches the abortion industry and its lawyers through provisions that require state governments pay the legal fees of those who successfully challenge the constitutionality of state actions. Every case we lose teaches our children that the powerful have a constitutional mandate to destroy those lives dependent upon them.
In short, while abortion is both morally and legally wrong, every losing judicial battle embeds the practice more deeply in American culture and jurisprudence.
A better way to overturn Roe
There are two primary paths to restoring legal protection for the lives of the unborn. The first runs through Congress with the passage of a federal Human Life Amendment. Unfortunately, as of today, we simply do not have the votes necessary to pass it by two-thirds in Congress, or ratify it in three-fourths of the states.
Don't expect doctors to be agents of the state: Roe v. Wade gave women a right to choose abortion. But doctors like me have a choice, too.
The second more complex, yet more likely, path lies through the courts. The woman’s right to kill her unborn child is a judicial creation, not a decision from the people. It is found nowhere in the text or history of the Constitution. Many pro-choice legal experts have openly acknowledged this fact. Even Justice Ruth Bader Ginsburg acknowledges the political morass Roe created. Now is not the time to accept the abolitionists’ embrace of legal anarchy as a strategy.
The idea that state officials — whether legislators, judges or governors — can “nullify” a Supreme Court opinion, no matter how wrong, is disproven by history. Many pro-abolitionist states refused to enforce the Fugitive Slave Acts of 1793 and 1850, and Abraham Lincoln decried Dred Scott v. Sandford, but it took the 13th Amendment to abolish slavery.
Men have to pull their weight: Want to end abortion? Hold men — fathers of those unplanned children — accountable.
Plessy v. Ferguson condoned the injustice of Jim Crow laws and the doctrine of separate but equal, and it took Brown v. Board of Education and the Civil Rights Act of 1964 to end legal segregation. Similarly, state nullification efforts, while emotionally appealing, fail to protect the unborn and end up funding lawyers for the abortion industry.
Patience is our ally in this fight. Laws prohibiting abortion based on the child’s sex, race or disability provide a window into the racist and eugenic history of abortion. Exposing the practice of live-dismemberment abortion illustrates abortionists’ callous disregard of human suffering. We will prevail, but not by seeking to “nullify” Roe. We will win by tenacious legislative efforts and persistent witness to the fact that Roe is a constitutional contradiction and a human tragedy.
Teresa S. Collett is a professor law and director of the Prolife Center at the University of St. Thomas School of Law in Minneapolis. The views expressed here are hers alone and are not intended to represent the views of the university.
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This article originally appeared on USA TODAY: Roe v. Wade anniversary: Strategy to abolish abortion needs to change
