It is possible that we are only months away from the reversal of Roe vs. Wade. That key goal of the pro-life movement – not the only goal and not the final one, but a key – has been on the hearts and minds of activists for nearly 50 years, and we often think of it as off in some far, unknown future.
But thanks to the case Dobbs vs. Jackson Women’s Health Organization, that victory is now within reach.
And the common wisdom, with good reason, says that what the ‘reversal of Roe’ consists of is ‘returning the issue to the states’ to decide. And it is often said that ‘then the work really begins.’
This historic moment, however, deserves a bit deeper consideration of how we phrase those thoughts.
Indeed, Roe vs. Wade, along with taking away recognition of the unborn baby’s right to life, took away recognition of the right of the states to legislate on medical procedures and on the fundamental right to life.
We are the “United States of America.” We are not one government. We are a union of fifty state governments, each with its own constitution, legislature, chief executive, and court system.
These states were not created by the federal government. Rather, the federal government was created by the states. And that federal government has only the powers specifically granted to it by the states, and no others.
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The states govern.
In particular, in matters related to medicine, laws are made by the states. There is no medical procedure that has the “Constitutional status” that the Courts have granted to abortion, hence limiting what the states can do to prohibit it and turning the courts into medical review boards in regard to abortion. This is an anomaly, and an unworkable one at that.
Indeed, in the Dobbs case, a brief signed by hundreds of members of Congress, and another one signed by hundreds of state legislators, calls on the Court to give back to lawmakers the ability to legislate. And there would not even be a Dobbs case unless the state of Mississippi had legislated. The same is true of most other Supreme Court cases on abortion.
Particularly egregious was the way that the District Court initially blocked the Mississippi “Gestational Age Act” under review in Dobbs: instead of examining the powerful reasons why Mississippi decided to protect unborn children starting at 15 weeks, the court looked only at one fact: that the protection given to these babies was earlier than viability, and on that fact alone, ruled against the state.
However, given all that, it would be simplistic to say simply that a reversal of Roe “returns the abortion issue to the states,” because the fight over abortion is already there and has been for a long time.
The Supreme Court, while limiting beyond reason what the states can do about abortion, nevertheless has said they can do a lot. The Court has recognized that they do have interests, from the onset of pregnancy, in protecting unborn life, preserving the health of women, and upholding the integrity of the medical profession. And although unduly hindered, the states have proven heroic in pushing the boundaries of what they can do to regulate and even prohibit abortion. Hundreds of pro-life laws have gone into effect.
In fact, the year 2021 has proven to be one of the most fruitful for pro-life laws.
It is clear, as a matter of fact, that each time the Court has given the states more latitude to pass pro-life laws, they have rushed to do so. It is like a dam always ready to break. For example, the Supreme Court case Planned Parenthood vs. Casey upheld informed consent laws in 1992. After that, approximately 29 states have put such laws into effect. After 1981, when the Supreme Court upheld parental involvement laws, some 38 states have put some version of such laws into effect.
And we see this with laws prohibiting partial-birth abortion, restricting or prohibiting taxpayer funding of abortion, implementing clinic regulations and informed consent requirements, supporting pregnancy centers, recognizing the unborn as victims of crimes that harm or kill them outside the context of abortion, and much more.
So it would be misleading to think that the abortion battle is going to be new to the states once Roe is reversed. The work is not going to “begin” then. It would be more accurate to say that so much of the work that has already been done on the state level will be able to take effect.
Nor will it be as difficult as we may think. I see it more as the floodgates opening, after having been held back by the Courts for so long. The Court might prohibit state officials from enforcing a pro-life law, but it has not erased the pro-life convictions from the hearts of the state legislators, and those who elect them, nor their determination to protect these children.
Finally, we should not think that “returning the issue to the states” takes it away entirely from the federal government. Congress can still legislate, and indeed it should, for the protection of the unborn nationwide. Indeed, we cannot rest with some states protecting the unborn and others giving license to kill them. Babies have a right to life no matter where they reside. The work of protecting that right will always be, as it has always been, carried out on both the state and federal levels. What the Court is about to do will simply energize that longstanding battle.