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Has Roe Already Been Overturned? The Viability Of The Pain-Capable Act


Tomorrow, the annual March for Life will see once again see hundreds of thousands of people descend on Washington (and several other cities) to protest against the systematic and horrific injustice of denying prenatal children equal protection of the law.

Although it will receive almost no substantial national coverage from traditional media, it will be an incredibly diverse gathering of people from every race, language, and way of life. There will be conservatives and liberals, Muslims and Jews, Tea-Partiers and pagans, theists and secularists, whites and blacks, heterosexuals and gays and lesbians, young and old. (Although disproportionately young.)

For those who have been paying attention, this is all very familiar.

But something different is happening tomorrow. Not only will the House be in session on the anniversary of Roe v. Wade, it will respond to this grim memorial by (easily) passing the Pain-Capable Unborn Child Protection Act. Making exceptions for rape and life of the mother, the bill would ban abortion beyond 20 weeks of pregnancy.

What Extremists Don’t Know: Roe Has Already Been Overturned

This big reveal has prompted the usual reactions from extremists. Here is a representative tweet:

My response to these kinds of reactions was, at first, simply dismissive. If a person isn’t aware that putting reasonable limits on abortion has been going on for decades—including that several states already have 20-week bans—how can they be seriously engaged?

But upon reflection I realized that, in a very real sense, they are right. Under Roe, there was so much deference given to the right to privacy that many of these bans would have been unconstitutional. The main problem with their view is that Roe has, in effect, already been overturned—something they can certainly be excused for missing.

Planned Parenthood v. Casey ‘established a new, less protective, constitutional standard for abortion restrictions.’

Don’t take my word for it. In a 2010 article she wrote in the William and Mary Journal of Women and the Law, Caitlin W. Bormann says quite directly that the 1992 case Planned Parenthood v. Casey “established a new, less protective, constitutional standard for abortion restrictions.” Instead of defending privacy, Casey focused on making sure that abortion restrictions didn’t impose what it calls an “undue burden” on women. This standard, she says, “immediately enabled states to invade women’s privacy in new ways.”

Bormann says the Roberts court “has interpreted Casey expansively”, resulting in “erosions of the privacy boundaries” that were once protected by Roe. Indeed, she says that certain privacy rights to abortion were “eviscerated” by Casey, especially as interpreted by the all-important swing voter on the Court, Justice Anthony Kennedy.

Writing in the New Yorker, Jeffery Toobin agrees. Would Kennedy uphold a state law with a 20-week (or earlier) ban? Toobin points out that in Gonzales v. Carhart (2007) this swing justice upheld federal law against late-term abortions with a very different sensibility from his opinion in Casey. Kennedy wrote, “The State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.” What counted as an undue burden for him when he helped decide Casey in 1992, Toobin noted ominously, looked very different to Kennedy fifteen years later.

Would Americans Support the Pain-Capable Act?

So a 20-week ban has legal viability. But what about political viability? Time and time again, we hear that Roe is overwhelmingly popular and that few people want to see it overturned. Doesn’t that mean that the Pain-Capable Act is a political loser?

Sixty-four percent of Americans support the 20-week ban. Contrary to the now-defunct ‘war on women’ narrative, women are significantly more likely than men to favor this law.

Hardly. Sixty-four percent of Americans support the 20-week ban. Contrary to the now-defunct “war on women” narrative, women are significantly more likely than men to favor this law. It is also supported by moderates who identify as pro-choice, especially given the fact that 20 weeks is tame compared to European abortion restrictions.

But how can we reconcile this with the data that Roe is so popular? In a Pew Forum study done on the fortieth anniversary of Roe, we learned that only 62 percent of Americans know that this Supreme Court decision is about abortion. (Shockingly, for those younger than 30 years old, this number fell to 44 percent!) Furthermore, of those who know that Roe was about abortion, many don’t know what the decision actually said or did. Many wrongly believe, for instance, that overturning Roe would make abortion illegal—instead of merely returning the issue to be decided by the states. To make matters worse, the questions asked in the polls themselves often misunderstand how Roe impacts abortion public policy.

But pro-lifers know better than most that a bill’s passage doesn’t necessary flow from its political viability. Sen. Harry Reid can no longer block it in the Senate, and Majority Leader Mitch McConnell has apparently promised to bring it up for vote. With a few pro-life Democrats on board, they will be just a few votes short of a filibuster- or veto-proof majority.

But will Republicans—so gifted over the decades by pro-life money, votes and other support—pull out all the stops in getting these votes? Especially because a 20-week restriction has so much mainstream support, pro-choice votes are there for the taking. Especially if the right carrots were attached to this bill.

What about adding mandatory paid maternity leave? How about pre-K or child-care subsidies? Or increased legal protections for women and mothers in the workplace? These are also pro-life measures that would lead to more women choosing to keep their children, but they would also give moderate Democrats the cover they need to resist pressure from Emily’s List and other enforcers of pro-choice orthodoxy. In addition to being politically expedient, these measures are also simply the right thing to do for women and their prenatal children.

Both Republicans and Democrats Employ the Costanza Strategy on Abortion

Will the GOP work to negotiate a serious compromise? Signs point to no. While Republicans have been active at the state level in enacting abortion restrictions, it is anything but surprising that have hesitated to use a big federal government to restrict individual choice and freedom. Indeed, that’s how they roll on almost every issue besides abortion. Democrats are no better. They energetically insist on big government protection for vulnerable populations—except on abortion, where they use the choice and freedom rhetoric of Republicans.

Those who wish to see legal protection for prenatal children must absolutely hold Republican feet to the fire and insist that they do what it takes to pass this bill.

In my forthcoming book I call this the (George) “Costanza” strategy: where each party, like the famed Seinfeld character, “does the opposite” of their instincts. But because what they’ve promised their abortion base is so far from their political hearts, very little political capital is invested by either party on this issue.

But these issues are too important for pro-lifers to once again roll over for the GOP. Those who wish to see legal protection for prenatal children must absolutely hold Republican feet to the fire and insist that they do what it takes to pass this bill. Based on past experience, pro-lifers have reason to worry that only a lukewarm effort will be made in the Senate and the bill will be successfully filibustered or vetoed. Then we will once again get the familiar appeals to pro-life community for more support of the GOP in the Senate and presidential races in 2016

Pro-lifers can no longer accept this. Public opinion is on our side, and will only get stronger as disproportionately pro-life (although not disproportionately Republican) millennials and Hispanics take their rightful places of power in our culture. The privacy standard of Roe has been replaced by the undue burden standard of Casey. We have a court that is more than willing to look favorably on abortion restrictions, especially if they are paired with protections for women to ease their burden.

Let the national GOP prove its worth to the pro-life community by showing that will do what is necessary to pass the Pain-Capable Unborn Child Protection Act. If they disappoint us once again—especially on a bill this popular—it will become impossible not to get the message they are sending us.