No, Overturning <em>Roe v. Wade</em> Will Not Make Abortion Illegal

No, Overturning Roe v. Wade Will Not Make Abortion Illegal

If the Supreme Court overturns Roe, abortion law will merely revert to the constitutionally charged lawmakers: those elected by the people to serve in the legislative branch.
Margot Cleveland
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Last week, after the House Judiciary Committee announced its upcoming hearing on H.R. 490, the Heartbeat Protection Act of 2017, TeenVogue took to its pixels to proclaim: “Republicans Are Trying to Ban Abortion After 6 Weeks of Pregnancy.”

As TeenVogue explained, H.R. 490, sponsored by Rep. Steve King (R-Iowa), would make it a federal crime to knowingly perform an abortion “without determining … whether the fetus has a detectable heartbeat,” “without informing the mother of the results of that determination,” or “after determining . . . that the fetus has a detectable heartbeat.”

The article’s author, Sammy Nickalls, warned that “the GOP is officially aiming to ban abortions …at six weeks, before many women even realize they’re pregnant.” But in the midst of her fevered alarm, Nickalls readily admits H.R. 490 “likely won’t pass in the House and the Senate.”

The abortion-rights Left often follows a similar tactic—seeking to frighten pro-choice women into believing that just one more conservative justice and poof, Republicans will force women to undergo pregnancy or resort to back-alley abortions. Of course, the “forced to undergo pregnancy” narrative is ridiculous, as I’ve pointed out before, and which the strained verbiage alone should give away.

But equally absurd is the notion that another originalist justice, and a subsequent overturning of Roe v. Wade, will render all, or even most, abortions illegal. Rather, if the Supreme Court overturns Roe, abortion law will merely revert to the constitutionally charged lawmakers: those elected by the people to serve in the legislative branch.

Jettisoning Roe v. Wade Won’t Jettison Legislatures

Federally, assuming Congress establishes its authority under the commerce clause or another constitutional provision to regulate abortion, legislation will likely only focus on late-term abortions and informed consent laws because, with or without Roe, the House and Senate will continue to boast members from liberal Massachusetts to conservative Texas and every gradation in between. Also with or without Roe, the Heartbeat Protection Act and other similar restrictive provisions will fail to garner the necessary votes to pass Congress.

At the state level, the results will vary, with blue-state legislatures such as California continuing to guarantee abortion on demand and paid for by taxpayers, while the lawmakers of red states such as Texas will likely limit abortion to the first trimester.

Herein lies a little secret abortion-rights activists have concealed in their warnings of a post-Roe “reproductive rights” Armageddon: Judges in at least 15 states have already found a state constitutional right to abortion that is actually broader than the right invented in Roe v. Wade. And if there is a state constitutional right to abortion, a state legislature will lack the ability to pass laws prohibiting even the most draconian abortion practices.

Abortion Activists Have Laid Judicial Groundwork

Further, while most of the states with a constitutionally protected “right” to abortion swing left, such as Oregon, Illinois, and Vermont, pro-choice activists have been silently preparing for the potential overturning of Roe by attempting to establish a state constitutional right to abortion in conservative states by turning to those states’ liberal judicial branches. Kansas is the latest target in this clandestine effort to guarantee a virtually unlimited “right” to abortion, no matter what the populace thinks.

So while abortion-rights activists continue to warn of fanatics on the Right, they know full well that the legislative branch would fail in any attempt to pass what they view as extreme laws. But the Left continues to raise the specter of “forced birth” to avoid discussing the merits of mainstream legislation, such as a ban on abortions at 22 weeks of pregnancy.

So why, then, did King present the heartbeat bill if it would never pass? Why not focus instead on a ban on late-term abortions instead of feeding the Left’s apocalyptic narrative of a post-Roe America? While some may view the effort as an attempt to placate the base, I am more inclined to believe it is a matter of principle: Whether or not society will ever support legislation prohibiting abortion’s killing of innocent human beings, it is wrong. The heartbeat bill seeks to preach this principle.

The proposed legislation does more. The heartbeat bill also forces the media to momentarily drop the euphemisms the abortion-rights community hides behind and report the facts—that an unborn baby has a heartbeat at six weeks’ gestation. Abortion supporters don’t like it one bit, as seen by Ob-Gyn Dr. Jen Gunter’s plea to the press to “stop calling them ‘heartbeat’ bills and call them ‘fetal pole cardiac activity’ bills.”

That is so strange, because when my son was four weeks old in utero, my ob-gyn said “there’s the heartbeat.” Not: “There’s the fetal pole cardiac activity.” But then again, Gunter likely calls the baby a baby too—unless he’s about to be killed. No euphemism or constitutional “right” can alter that truth.

Margot Cleveland is a senior contributor to The Federalist. Cleveland is a lawyer and a graduate of the Notre Dame Law School as well as a former full-time faculty member and current adjunct professor for the college of business at the University of Notre Dame.

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