While many political observers will say the landmark abortion case Roe v. Wade is on the verge of being overturned due to Brett Kavanaugh’s confirmation to the Supreme Court, many pro-life activists are not so certain the end of legalized abortion is approaching.
Overturning Roe would indicate an exciting shift. It most likely won’t happen. Yet even if it did, it won’t be the boon that uninformed pro-life believers are expecting. Losing Roe won’t criminalize abortion but send its regulation back to state courts.
What does a future without Roe look like? It looks like a future where abortion access may be expanded in most states, even those with pro-life legislators and citizens.
What A New Abortion Map Might Look Like
In about 21 states, abortion is secure. If Roe v. Wade is overturned, abortion access probably won’t be restricted in those states. Twenty-two other states have legal restrictions that will make abortion virtually illegal once Roe is gone. These 22 states facing an almost immediate end to abortion are currently the primary focus of pro-choice activists’ attention. (The remainder of states are vulnerable to abortion prohibitions, but not immediately, and the likelihood of them remaining vulnerable is low.)
In pro-abortion states that presently rely on Roe for protection, lawmakers are already working hard to enshrine abortion rights more liberal than Roe via proactive legislation. Their hope is to safeguard what they see as a critical freedom in the event Roe is sent back to the states.
In New York, for example, Democrats have the majority for the first time in decades, and just passed comprehensive abortion expansion legislation, including making it easier for women to seek third-trimester abortions, a proposal that had consistently failed in previous years. The issue was a main talking point in this year’s midterm elections. Not only have they safeguarded Roe, but abortion access has been expanded far beyond what even the most abortion-friendly states have written into law.
In addition, pro-choice advocacy groups are using judicial activism to push through abortion allowances in states where it seems legislators may not support abortion access. Case in point: The much-lauded “Iowa Heartbeat Bill” passed last May was struck down by the Iowa Supreme Court.
Abortion As a Constitutional Right At the State Level
We could have predicted the Iowa bill’s eventual failure based on another decision, made last June, in which a law requiring a 72-hour waiting period between pre-abortion counseling and a termination of pregnancy was rejected by Iowa’s Supreme Court. More important than the rejection of the waiting period was the basis for the rejection: The court found the right to abortion in the Iowa State Constitution.
This means if Roe v. Wade is overturned, Iowans could find themselves living in a state where almost any abortion is legal. After all, abortion is now a constitutional right in Iowa, and there are few limitations to that right, unlike the “viability” standard set forth in Roe.
While pro-life activists have been assiduously lobbying to pass incremental and unenforceable targeted regulation of abortion providers (TRAP) and “trigger” laws to limit abortions should Roe be overturned, pro-choice groups have been bypassing state legislatures altogether and focusing their attention on amending state constitutions to favor abortion through lower courts. Activists are cautious to avoid any considerations in their filings that could move their cases into the federal court system. If successful, these efforts will serve to expand abortion once Roe is overturned, even in states with life-affirming governments and voters.
In the end, the only way to completely stop abortion is by teaching people to recognize fetal life as human life. This can be accomplished through cultural change, but until that time, focusing on state-level constitutional protections for prenatal humans is a vital part of pro-life activism.
Midterms Offer Some Positive News For Pro-lifers
The recent midterm election offers some hope. Alabama and West Virginia voters approved amendments declaring there was no right to abortion implied in their constitutions. The language mirrored a previously successful constitutional amendment passed in Tennessee, which has been working its way through the courts. These amendments don’t guarantee these states will remain abortion-free should Roe be overturned, but they most likely end the possibility of well-funded pro-choice activists using judicial activism to bypass the wishes of voters in the states involved.
Kavanaugh may end up affirming reasonable anti-abortion laws. But realistically, we have no way of determining how he will vote on cases set before him. He has clearly stated that Roe is precedent. He also recently declined to hear a lower court ruling that involved defunding Planned Parenthood (although there were other reasons given). No one can truly claim to know how he’ll vote when faced with the upcoming, myriad cases regarding life issues.
We can better predict what may happen should he and the rest of the court overturn Roe. Our focus on fighting abortion through incremental laws may fail. If pro-choice groups continue to target state constitutions, it won’t matter how many small pieces of legislation lawmakers pass: once a state successfully finds the right to an abortion in its constitution, every new pro-life law will be held up against that standard.
We must begin to address the possibility of personhood being the most reasonable option. Unfortunately, personhood is not a popular initiative even within the pro-life movement.
Giving Unborn Children Proper Rights
While most of us understand a fetus is a living human being at all stages of development, many Americans are conflicted about giving an unborn child the same rights as her mother. We have lived with abortion for so long it seems inconceivable it will ever completely go away.
Horror stories of what happened before abortion was legalized have become deeply ingrained into our national psyche, and, deep down, we cling to the belief that minimal legal abortion is better than no legal abortion. It seems the only way we can possibly balance the life of a mother and her child is to permit abortion in some form.
We see newscasts of places like El Salvador, where women are jailed for miscarriages and stillbirths due to strict abortion laws. We fear women ending up in jail for losing a preborn baby. We understand personhood may call abortifacient contraception into question.
We also need to find a middle ground on bodily autonomy for pregnant women while protecting the rights of the unborn child. We can all agree a pregnant woman shouldn’t be abusing drugs while pregnant, but there are gray areas involving lifestyle habits that may be less savory, but not life-threatening for either mother or baby. These are very real concerns, and they need to be addressed by activists and lawmakers.
There are ways to assure women are safe from prosecution using “whistleblower” laws, or by including language in proposed legislation that absolves post-abortive women of criminal penalties, should their abortion be discovered. We can concede personhood at implantation rather than fertilization, so that birth control access is not threatened.
We can highlight the fact that American women have been historically protected from prosecution for abortion, as have women in most Western societies, and those cases highlighted by abortion advocates as proof of our mendacity in this respect usually involve women who have aborted late-term pregnancies, in effect killing viable babies through violent means. In many of those cases there is conflicting evidence as to whether the child was actually born alive and discarded — in at least one of those cases the baby was born alive, and severely disabled due to the attempted abortion.
In the United States, these women are still ultimately given the benefit of the doubt and freed. We can create special circumstances within our personhood legislation for mothers to be given immediate access to curative methods, rather than incarceration, if they’re engaged in dangerous activities, and accept that some mothers will not choose to parent the same as others, in the case of less troubling issues. Whatever the case, we must stop relying on the federal government to “fix” abortion.
Ultimately, Kavanaugh may be the conservative justice we had hoped for, but his confirmation is no guarantee of an abortion-free America. That designation lies with us. Until we boldly stand up for unborn children, we will continue to see expansions of abortion rights through judicial activism aimed at altering state constitutions.
Continuing to deny the possibility of personhood is a failure to promote a consistent stance on abortion. In the end, this may be a fatal mistake for both the pro-life movement and the thousands of babies whose lives are at stake.