American Values - Gary L. Bauer, President

Op/Ed Article Article

What Would Happen If Roe Goes?

Washington Examiner

01/23/2006

What Would Happen If Roe Goes?
By Daniel Allott

Big political victories often render the victors irrelevant. But, for the anti-abortion movement, whose ultimate goal is the reversal of Roe v. Wade, victory would render it more relevant than ever.

Every January 22nd Washington, D.C., becomes the frontline in the abortion war as hundreds of thousands of abortion activists flock to the nation’s capital for a weekend of protests, prayer vigils and strategy sessions marking the anniversary of the Supreme Court’s 1973 Roe v. Wade decision establishing abortion as a constitutional right.

Though the rhetoric coming from both sides of the debate suggests that legal abortion hinges on Roe, the hyperbole is misspent. In fact, no matter which side prevails if and when the Supreme Court revisits its most notorious decision, the result will be the perpetuation of 1 million yearly abortions and virtually unfettered access for most women seeking abortion.

That’s right, if Roe were overturned abortion policy would revert to the states to decide, with research showing a negligible difference in the number of abortions.

The Life Legal Defense Fund, a non-profit legal organization, recently released a comprehensive study analyzing the current status of state abortion laws. It found that upon Roe’s reversal only seven states – representing less than 10 percent of the U.S. population – would have enforceable abortion bans.

USA Today recently conducted a similar state-by-state analysis and predicted that 11 states would immediately pass laws prohibiting abortion, but these states had combined less than seven percent of abortion providers in 2000. Also, as many as 30 states would continue to allow most abortions and many others that currently restrict it would likely alter decades-old laws to reflect a citizenry generally more sympathetic to abortion.

So, what will a post-Roe America look like? Sadly, very much like the America of today in terms of the sheer volume of abortions. The major difference would be an anti-abortion movement toiling to tackle 50 separate abortion policies simultaneously.

Despite this grim forecast, many committed pro-lifers insist that if Roe were reversed, abortion law would reoccupy its proper place with the states. Senator Sam Brownback, perhaps the strongest defender of life in the U.S. Senate, recently stated: “The beauty of the issue is it goes back to the states. …And you get into a system where the people can decide and discuss and it is really where it should be.”

But the protection of human life should not be left to the states. The 14th Amendment says no state shall, “deprive any person of life, liberty, or property, without due process of law.” In Roe, the Supreme Court concluded not only that the 14th Amendment protects abortion as a “due process” liberty, but also that the right to life clause does not pertain to the unborn child since “person” has no prenatal application elsewhere in the Constitution.

By asserting “states’ rights”, Roe’s pro-life opposition effectively (if unwittingly) accepts Roe’s reasoning that prenatal life is not a due process right within the constitutional framework and, therefore, that the unborn child is not a constitutional “person.”
So, instead of declaring that the 14th Amendment guarantees the right to life of all persons – a word the amendment’s principal author instructed should be defined “broad[ly] and comprehensive[ly]” – many pro-lifers are content to deny the constitutional claim to the right to unborn life.

Some conservatives claim that support for constitutional protections for the unborn betrays the federalist principles of conservatism. But, in our system of government certain issues are left to the states while select others are deemed so essential to our understanding of democracy that they must be taken up nationally.

Our country fought a civil war over the belief that some matters are too fundamental to be decided state by state. Just as slavery was an assault on human dignity, the slaughter of millions of society’s most vulnerable persons should be viewed as an assault on a natural human right that exists prior to and regardless of the whims of a majority.

While overturning Roe v. Wade would be a crucial step on the road to eradicating abortion, by proclaiming “states’ rights” pro-lifers reject the right to life at the heart of the Constitution’s fourteenth amendment and at the foundation of American democracy.

Daniel Allott is a policy analyst at American Values