It’s been over a week now, but it looks even more likely that Roe will be thrown into the trash bin of unjust US Supreme Court decisions. While radical pro-abortion activists are disrupting Catholic services, vandalizing church property, and even trying to destroy pro-life offices, the fact still remains, abortion, as a matter of policy, is heading back to the states. But what does this mean for the pro-life movement? What will pro-life legislation look like in a post-Roe America? Well, it really will depend on the state. Some states, will be facing some new battles, others will be facing much of the same. So, it is necessary to understand that much of the country will be divided into three categories when it comes to what will be happening with respect to pro-life abortion related legislation.
States with Pro-Life Abortion Prohibitions:
Twelve states have passed what are known as Abortion Trigger Bans, which are laws that are triggered into effect. Specifically, they are triggered when Roe is overturned and they will prohibit the practice of abortion within those states. Furthermore, there are other states that have constitutions that expressly state that abortion is not a right[i] and that have bans on the books. It will be these first states that will ban abortion.[ii]
However, those states with Abortion Trigger Bans, may be facing a hurdle. It appears that those clinics that perform in vitro fertilization (IVF), may be looking to either sue in order to challenge such laws[iii] or even try to amend such laws.[iv] If this is the case, then pro-life policy makers will be in full force ensuring that their Abortion Trigger Ban laws remain in effect or that they are not weakened by the IVF industry. No doubt, the IVF industry will try to make some sort of distinction that somehow the embryonic child created in the IVF lab is different than the embryonic child conceived in the mother’s womb. Biologically they are not. While many everyday pro-life people are aware of the evils of the abortion industry, they have not been made aware of just how the IVF industry plays fast and loose with the lives of human embryonic children. This will now become a priority for the pro-life movement in those areas of the country. No doubt, in addition to a likely fight with the IVF industry over Abortion Trigger Laws, it may also be important to pass reporting requirements for the IVF industry as well. These requirements could require these clinics to report how many embryonic children are cryogenically frozen, how many are discarded (killed), how many died during the thawing process, and how many were adopted.
In addition to fighting the IVF industry, it will also be important for pro-life policy makers to pass pro-life safety net legislation. While many of these states have been in the process of or already have defunded the abortion industry and rerouted public funding to pro-life pregnancy centers, this will need to continue. Pro-abortion advocates are quick to criticize the pro-life movement for being pro-birth, but the fact is pro-life policy makers will need to pass legislation such as ensuring that mother’s can receive child support during pregnancy as well from the biological father. This type of legislation is actually making its way through the Legislature of the US Territory of Guam.[v] No doubt, there will be efforts to help make adoption cheaper and reform the foster care system as well. These are just a couple of examples of what pro-life legislators will be doing to help with caring for the children before and after birth.
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Here is an interesting dynamic. It is also in these states where some things are truly getting ugly when it comes to the enforcement of the pro-life laws that already exist. It has become even clearer as it looks that Roe will be overturned that there will be elected officials who will assume office that will refuse to enforce pro-life laws. In fact, Dana Nessel, the Attorney General for Michigan, has said that she will refuse to enforce a pre-Roe law that would go into effect if Roe is overturned.[vi] Furthermore, Wisconsin Attorney General, Josh Kaul, said the same.[vii] It is clear that in some states where pro-life laws that have passed, but on occasion where pro-abortion office holders are still elected to statewide positions, this refusal to enforce will be a problem. It seems that in these circumstances that more states will be looking at the pro-life private enforcement mechanism that was found originally in the Sanctuary City for the Unborn ordinances and in the Texas Fetal Heartbeat Law. If public officials will refuse to enforce the law, then this private enforcement mechanism will ensure that enforcement will continue by the citizens.[viii]
No doubt, in addition to the passing of private enforcement mechanism to existing pro-life laws, these states will need to continue doing what they have been doing and that is passing incremental pro-life laws. They will eventually have to work their way up to a full ban and that may take some time in these states. Nonetheless, that should not prevent them from working on Humane Fetal Disposition Laws, Ultrasound Laws, Parental Involvement Laws, Abortion Pill Regulation Laws, Late-Term Abortion Bans, Dismemberment Abortion Bans, and Abortion Clinic Regulation Laws. These are just a few examples. But much of what has already been happening will continue since they have been unable to pass an Abortion Trigger Ban or amend their state constitution.
At local levels, it may be good for cities and towns to pass pro-life Sanctuary City for the Unborn Ordinances. Again, this sends a strong message that abortion will not be tolerated in these communities. Again, with the private enforcement mechanism, it is difficult for abortion advocates to win in court since they do not have standing.
Radically Anti-Life States:
Clearly, there are states that have passed laws that have enshrined the so-called “right” to abortion. Of course, this right is utter nonsense. Rights imply duties and there is no duty to kill innocent human life. Therefore, no right to abortion. Sadly, however, these states have made this ability to kill innocent unborn life legal. Again, much of what these pro-life policy makers have been doing will continue. However, there has been an increase in these states to even radicalize even further. Banning pro-life pregnancy centers and such has been an ongoing effort over the last several years. But, Maine, took things to a new level when they just instituted a new statewide “buffer zone” law.[ix] This law, like banning pregnancy centers, is a way to stifle free speech of pro-life advocates. In this particular case, it is meant to stifle the free speech of pro-life sidewalk counselors.
Sadly, in many cases, it seems like pro-life forces are on their toes with trying to defeat or fight pro-abortion measures. Very few pro-life bills even make it out of committee. Yet, there can be success with pro-life safety net legislation. Such initiatives can include fully funding childbirth to support a woman’s choice for life, funding child-care for those pregnant mothers facing underemployment, and require all medical facilities to issue birth certificates for all children born (whether full term or not).[x] These may be common ground initiatives that, while not drastically reducing the abortion rate like other pro-life laws, can still help.
The one thing people must realize is that with the overturning of Roe the work of the pro-life movement is still not finished on a legislative level. There will still be fights to legalize abortion in states where it is banned. There will still be fights over euthanasia, and there will still be fights over the right to life of the IVF embryonic child. These issues will not simply disappear when Roe is no more. While there will be a patchwork of laws throughout the United States, each state will have it’s own unique pro-life battle left to wage. In many ways, it will not be too dissimilar to what it looks like this very day. However, the movement will be entering into a new era; and while Roe may be relegated to the trash bin of overturned US Supreme Court decisions, the work is far from finished. If the pro-life movement is to hope to accomplish a “Human Life Amendment”, these purple states will need to be able to pass laws that prohibit abortion and that will take time and effort. But one thing is for sure, pro-life incrementalism has proven to be successful and it will eventually work in these states as well. Eventually, legalized abortion will become a thing of the past.
LifeNews Note: Joe Kral, M.A., is the President of the Society of St. Sebastian and Editor-in-Chief of the Journal of Bioethics in Law & Culture Quarterly.
[i] Bilger, Micaiah, “26 States Will Ban All or Most Abortions if Supreme Court Overturns Roe,” LifeNews.com, December 8, 2021, https://www.lifenews.com/2021/12/08/26-states-will-ban-all-or-most-abortions-if-supreme-court-overturns-roe-v-wade/, retrieved May 9, 2022.
[ii] Although, a state like Wyoming, which has rape and incest exceptions, pro-life policy makers may wish to amend such a law.
[iii] Peterson, Abbie, “Reproductive Health Doctors Concerned About Abortion Bill’s Impact on Families Seeking IVF,” KETV, May 6, 2022, https://www.ketv.com/article/reproductive-health-doctors-concerned-about-abortion-bills-impact-on-families-seeking-ivf/39920836?fbclid=IwAR1aS9uAoQj_Jbioiq9rFMJ-N2Qtf5zDjyaR2SVSSku-XfqGXqOCsNx5FuM#, retrieved on May 9, 2022.
[iv] Wilner, Michael, “Supreme Court Decision May Hinder Access to IVF, A Revolutionary Fertility Tool of the Roe Era,” McClatchy DC, May 6, 2022, https://www.mcclatchydc.com/news/politics-government/white-house/article261123547.html?fbclid=IwAR2bmqKuE9o5nC37mfKFYjCDHJod4ooZr4D62XEDaWmiNNro0owVMb8d_X0, retrieved May 9, 2022.
[v] Taitano II, Joe, “Bill Would Require Child Support Payments Starting In The Womb,” Pacific Daily News, April 21, 2022, https://www.guampdn.com/news/bill-would-require-child-support-payments-starting-in-the-womb/article_c86ea420-c140-11ec-b45a-37c9f5db2de4.html?fbclid=IwAR3IgP318vSZMXBerYYNPIKrvylSd7FjaTyGbJO51tHtntKByPj2q7LobkE, retrieved on May 9, 2022.
[vi] Farrow, Hannah, “Michigan AG Refuses ‘Draconian’ 1931 Abortion Law,” Politico, May 8, 2022, https://www.politico.com/news/2022/05/08/michigan-ag-refuses-draconian-1931-law-00030912, retrieved on May 9, 2022.
[vii] Smith, Matt, “Wisconsin Attorney General Say He Wouldn’t Enforce Abortion Ban,” WISN, May 4, 2022, https://www.wisn.com/article/state-attorney-general-says-he-wouldnt-enforce-abortion-ban/39909730#, retrieved on May 9, 2022.
[viii] Kral, Joe, “The Moral Need for the Pro-Life Private Enforcement Mechanism,” Sebastian’s Point, March 31, 2022, https://www.societyofstsebastian.org/moral-need-private-enforcement-kral, retrieved on May 9, 2022.
[ix] Whittle, Patrick, “New Maine Law Aims to Stop Harassment at Abortion Clinics,” Associated Press, April 25, 2022, https://www.boston.com/news/local-news/2022/04/25/new-maine-law-aims-to-stop-harassment-at-abortion-clinics/, retrieved on May 9, 2022.
[x] This is only a few. But this list is from Susan Arnall of Right to Life League and specifically from her article entitled, “Back to the Future: Countering Abortion in California” which was published in the Winter 2022 Edition of the Journal of Bioethics in Law & Culture, https://www.societyofstsebastian.org/winter2022-ca-post-roe-policy-arnall, retrieved on May 9, 2022.