With the retirement of Justice Anthony Kennedy, and the nomination and all-but-certain appointment of Judge Brett Kavanaugh in his place, pro-lifers feel much more hope in realizing their dream: the reversal of Roe v. Wade and the deconstruction of one of the world’s most permissive and destructive abortion regimes.
Yet some legal scholars argue that, given the past histories of both Kavanaugh and Chief Justice John Roberts, both men would be hesitant to issue a sweeping judicial decision that would overturn Roe outright. Instead, they find it much more likely that this particular court would chip away at prior abortion precedents without outright reversal.
There is some possibility that a future court with a stronger originalist majority (perhaps featuring Judge Amy Coney Barrett in place of Ruth Bader Ginsburg in a female trinominal replacement) could go even further and interpret the Fourteenth Amendment’s equal protection clause to apply to the unborn, thus guaranteeing the right to life and outlawing abortion nationwide.
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However, if the court finds simply that there is no constitutionally protected right to an abortion, then the matter will devolve the individual states.
It seems more probable, then, that Roe will not be overturned soon, but that more openings to restricting abortion will present themselves. That’s when the work of the pro-life movement will really begin.
Up to this point, pro-lifers have had to operate within the bounds of Roe, Doe v. Bolton, and Planned Parenthood v. Casey, which left limited room for placing restrictions on abortion even at the state level—many a common-sense bill, like health and cleanliness standards for abortion clinics or informed consent requirements, were struck down by judges as placing an “undue burden” on a woman’s “right to choose” (in the language of the Casey decision). While some progress has been made, as with Congress passing and the Supreme Court upholding a partial-birth abortion ban, much of the legislative effort of the pro-life movement has been frustrated by the impenetrable iron ceiling of these precedents.
Now, with a top judiciary more sympathetic to allowing further restrictions on abortion, the question takes on new life. The issue will likely be increasingly decided at the political level rather than the judicial one. This means, pro-lifers will have to work that much harder to ensure that their methods of persuasion are truly effective, i.e., turning into concrete action. The work of the pro-life movement in a post-Roe world will be to convince moderates, and perhaps even progressives, to support policies and politicians that will restrict abortion.
What are some of the most effective strategies we might use?
First, we can continue with strategies that have already proven successful. Continue pushing for incremental changes to abortion law. While some pro-life groups favor an “all or nothing approach,” preferring to focus their energy on a total ban on abortion, others have adopted what some call the “house on fire” mentality: if a building is burning and there are people inside, you don’t refrain from helping those you can help just because you can’t help everyone—you save as many people as possible. That said, if the court struck down the absurdly latitudinarian standard of “undue burden,” more work could be done at the margins. Groups could advocate for different kinds of change to the system depending upon the state in question. Places like Kansas and Oklahoma would surely push for outright bans. For states like New York or California that have more aggressive abortion regimes, one might be able to convince the population that, at the very least, abortion clinics ought to have the same standards for cleanliness and properly trained medical personal as other surgical facilities. Surely, this is something we can all agree on.
Pro-life groups could also continue making use of ultrasound technology to display the humanity of the unborn. Evidence shows that the ability to be able to see inside the womb has had a tremendous impact on moving opinion polling toward favoring pro-life positions. “Pro-choice” advocates cannot credibly call the fetus a “blob of tissue” when we can see with our own eyes the child’s fingers, toes, heart, and brain, as well as the child’s movements and reactions.
One could also make the international case. While many progressives consider any restriction on abortion to be backward, barbaric, or that worst of epithets, “medieval,” they may be surprised to learn that the United States has one of the most extreme abortion regimes in the world. The U.S. is one of only seven countries that allows elective abortion after 20 weeks—here we join the ranks of such august defenders of human liberty as China, Vietnam, and North Korea, as well as the Netherlands, which has recently taken also to killing children outside of the womb. Most European countries ban most abortions after 12 weeks. The next time your left-wing friend says we should adopt Norway’s socialist economy, tell them you’d be willing to discuss it if they also included Norway’s near-total ban on abortion after 22 weeks.
For the last 45 years, the abortion debate has been short-circuited in large part due to the jurisprudence of Roe, Doe, and Casey. This will change when Justices Neil Gorsuch and Brett Kavanaugh are writing majority opinions that allow for greater restrictions at the state level, which will also have the effect of creating greater conversation at all levels. These strategies can be effective in continuing the positive momentum the pro-life movement has created over the last few decades, putting into place life-saving laws that protect the most vulnerable among us.
(Photo credit: 2017 March for Life; Jeff Bruno / CNA)