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The Supreme Court Shouldn’t Return Abortion To The States. It Should Ban Abortion Altogether


In the wake of the U.S. Supreme Court’s recent decision to reconsider Roe v. Wade this fall, Clarke Forsythe, senior counsel for Americans United for Life and perhaps the most well-known pro-life attorney, proclaimed:

The court desperately needs to decentralize the [abortion] issue and send it back to the states … pro-life leaders need to think long and hard about overturning federalism and taking the issue away from the states.

Forsythe’s view is consistent with his recent Wall Street Journal article, which advanced the view that “the high court could put questions about gestational limits [for abortion access] back into voters’s hands — where they belong.”

Since America is a constitutional republic and not a direct democracy, Americans don’t vote to decide who deserves the protections guaranteed under the U.S. Constitution. Imagine a state with anti-immigrant leaders convincing its citizens to amend state homicide laws so they only apply to victims who are citizens. Unthinkable.

Unfortunately, however, this is a matter of debate in the pro-life movement. While some advocate for the use of a states’ rights approach to overturning Roe, others support pushing for protecting the unborn’s right to life.

Members of the first camp argue the Supreme Court should merely allow states to craft whichever abortion laws their citizens prefer. The second camp believes the Supreme Court should recognize unborn humans as persons within the meaning of the Fourteenth Amendment’s Equal Protection Clause, an interpretation amounting to a constitutional mandate requiring states to protect unborn humans with the same homicide laws that protect born humans outside of the womb.

Law professor Mary Ziegler describes Forsythe as “a brilliant strategist” and the states’ rights approach as a “savvy argument.” She recently boosted years of speculation that the only difference between the two camps is merely a matter of strategy. This theory suggests people such as Forsythe do not truly believe the legality of abortion should be democratically decided; they solely support the states’s rights approach as a moderate, incremental step on the path to rights for the unborn.

But is the divide genuinely borne out of differences of opinion on timing and strategy? Or, might there be sincere, fundamental differences between those who oppose Roe due to its federalization of America’s abortion laws, and human rights advocates, who oppose abortion because they believe all humans equally deserve constitutional rights?

Consider the words of the late Justice Antonin Scalia, a proud pro-life Catholic and hero to many in the pro-life movement. In the 1992 case that upheld Roe, he endorsed the states’ rights approach by claiming the Supreme Court “should get out of this area [of abortion law], where we have no right to be, and where we do neither ourselves nor the country any good by remaining.”

Years later, during an interview on “60 Minutes,” he rejected the rights of the unborn argument:

They say that the Equal Protection Clause requires that you treat a helpless human being that’s still in the womb the way you treat other human beings. I think that’s wrong. I think when the Constitution says that persons are entitled to equal protection of the laws, I think it clearly means walking-around persons.

So, if we take Scalia’s views as representative of the states’ rights camp, the argument is not that the life of an unborn child supersedes his or her mother’s right to an abortion. Rather, they argue a state’s right to prevent a woman from having an abortion supersedes that woman’s right to end her child’s life.

Consider the crucial difference. One argument represents the heart of the pro-life cause, which was founded as “the right-to-life movement” by human rights advocates dedicated to defending the right to life of all humans — born or unborn. The other argument leads to the views of pro-life Americans being distorted and cast in terms their opponents often employ: the government has the right to intrude on a woman’s reproductive choices.

While Forsythe warned pro-life leaders of the dangers of the unborn rights approach, I want to caution him and other supporters of the states’ rights approach: Their approach is an unnecessary, imprudent gamble, and both science and the U.S. Constitution are on our side.

Consider the views of Americans on legal abortion. Only 13 percent of Americans report preferring no abortion restrictions at any point before birth. A recent Marist poll showed 80 percent of Americans want abortion laws that protect the health of a pregnant woman and the life of her unborn child. A YouGov poll conducted in late May of this year even showed that 44 percent of Americans favor Mississippi’s 15-week abortion ban while only 31 percent opposed it.

Since studies show 93 percent of Americans believe abortion should be restricted after a human’s life begins, our nation can accept the fact the U.S. Constitution guarantees equal protection under the law for all humans, unborn and born. Americans will not accept the reversal of Roe, however, if the messaging they hear is that abortion rights are secondary to the rights of voters.

We are not a pro-voters rights movement. We are not a pro-government movement. We are not a pro-federalism movement. We are not even an “anti-abortion” movement, which focuses on opposition to legal abortion rather than the rights of unborn humans.

We are a right-to-life movement, and it is high time we live out our principles and unapologetically stand for the rights of those yet not born. The movement’s sole aim is to ensure that the rights of all humans, unborn and born, are legally protected. Let’s start acting like it.