Today, January 22, is National Sanctity of Human Life Day. The
first such day was proclaimed by President Ronald Reagan in 1984. The date was
chosen because it is the date in 1973 when the U.S. Supreme Court, in the
infamous case of Roe v. Wade, held that a woman’s
right to an abortion fell within the right to privacy protected by the
Fourteenth Amendment. States may no longer ban abortions before the fetus is
determined to be “viable.”
Many churches celebrate
Sanctity of Human Life Sunday on the third Sunday of January—the Sunday before
the anniversary of the Roe decision.
On this Sunday, sermons were preached on the national sin of abortion,
literature was passed out regarding the evils of abortion, gruesome pictures
were shown of dead fetuses and botched abortions, the horrors of partial-birth
abortion were explained, the further liberalization of abortion laws in states
like New York was denounced, and Planned Parenthood was singled out for
condemnation (but probably not the “pro-life” Republicans who continue to fund
the organization).
But of course, this is all
just preaching to the choir, as most girls and women in Catholic, conservative,
evangelical, and fundamentalist churches—the kind of churches that observe
Sanctity of Human Life Sunday—who take their religion somewhat seriously are
not likely candidates to have an abortion.
More than 200 members of
Congress (39 senators and 168 House members—all of whom are Republicans) are
urging the Supreme Court to reconsider Roe v. Wade when
it takes up the issue of Louisiana’s admitting privileges law in the
consolidated cases of June Medical Services LLC v.
Gee and Gee v. June Medical Services
LLC.
The members of Congress have
filed an amicus brief in support of the respondent
and cross-petitioner, Dr. Rebekah Gee, the Secretary of the Louisiana
Department of Health. As reported by Kevin Daley, a legal affairs reporter for the
Daily Caller News Foundation:
“Forty-six years after Roe
was decided, it remains a radically unsettled precedent: two of the seven
Justices who originally joined the majority subsequently repudiated it in whole
or in part, and virtually every abortion decision since has been closely
divided,” the brief reads.
“The Supreme Court’s 1992
Casey decision exemplifies the permanent flux of abortion jurisprudence,” the brief
argues. Casey involved a Pennsylvania law requiring doctors to counsel patients
about abortion 24 hours before the procedure and obtain parental consent if the
patient is a minor, among other things. The high court upheld those
requirements. In so doing, it overturned two decisions from the 1980s that
blocked comparable regulations.
A similar sequence preceded
the 2007 Gonzalez v. Carhart decision, the lawmakers note. In Gonzalez, the
high court upheld the federal Partial-Birth Abortion Ban Act. That law banned
an abortion method called intact dilation and extraction. Just seven years
earlier, however, the justices struck down a Nebraska law much like the federal
PBA ban.
“These incessant
retrenchments show that Roe has been substantially undermined by subsequent
authority, a principal factor the Court considers when deciding whether to
overrule precedent,” the brief reads. “Casey clearly did not settle the
abortion issue, and it is time for the Court to take it up again.”
Elsewhere
the lawmakers wrote that abortion case law is “characterized by Delphic
confusion and protean change.”
At
issue in the Louisiana admitting privileges law is the requirement that
abortion providers must have admitting privileges at a local hospital. Abortion
providers challenged the law and a federal district court judge agreed with
their objections. However, the 5th U.S. Circuit Court of Appeals reversed the
lower court decision and upheld the law, so the plaintiff physicians appealed
to the Supreme Court.
There is a better reason why the Supreme Court should reconsider Roe v. Wade: the Constitution, federalism, the Tenth
Amendment, and the proper role of the federal government—take your pick. What
James Madison—the Father of the Constitution—wrote in Federalist No. 45 is still true, even though
hardly anyone in Congress actually believes it: “The powers delegated by the proposed Constitution to the Federal
Government, are few and defined. Those which are to remain in the State
Governments are numerous and indefinite.” There is no power delegated to the
federal government by the Constitution that permits it to have anything to do
with abortion. As Ron Paul has written: “The federalization
of abortion law is based not on constitutional principles, but rather on a
social and political construct created out of thin air by the Roe court.”
Before
the Roe decision in 1973, abortion was strictly a matter of state law. Thirty
states prohibited abortion without exception; sixteen states banned abortion
except in the case of rape, incest, life or health threat to mother, and/or
fetal impairment; and four states allowed abortions in nearly all cases before
the fetus was viable.
What could we expect if the
Supreme Court does reconsider Roe v. Wade, and
does overturn the decision? As a recent World Magazine article points
out, Arkansas, Kentucky, Missouri, and Tennessee have passed legislation that
will outlaw abortion in those states if the Supreme Court overturns Roe. Georgia, Kentucky, Louisiana, Mississippi, and
Ohio have passed “heartbeat” bills—laws to ban abortion after the baby has a
detectable heartbeat. Alabama has passed legislation banning abortion at any
stage of pregnancy, with exceptions for a mother’s health. Missouri, Arkansas,
and Utah have passed abortion bans with cut-off periods ranging from eight
weeks to around 20 weeks of gestation. Governors in Indiana and North Dakota
have signed bills to ban a common abortion method known as dismemberment
abortion. Federal judges have temporarily blocked some of these laws. They
could no longer do so if Roe were to be
overturned.
Regardless of one’s position on
abortion, adherence to the Constitution, federalism, the Tenth Amendment, and
the proper role of the federal government demands that the abortion issue be
left up to the states.
Laurence
M. Vance [send
him mail] writes from central Florida. He is the author of The War on Drugs Is a War on Freedom; War, Christianity, and the State: Essays on the Follies
of Christian Militarism; War, Empire, and the Military: Essays on the Follies of
War and U.S. Foreign Policy; King James, His Bible, and Its Translators,
and many other books. His newest books are Free Trade or Protectionism? and The Free Society.
