As states across the country have begun to implement widely covered and hot-button abortion bills, the left and right have taken up arms through social media and news outlets — but perhaps too early. The bills themselves pose little immediate threat to abortion thanks to the deference of federal judges to Roe v. Wade, and legislators are aware of this. Nevertheless, the long-run goal of pro-life lawmakers is to eventually end national abortion on-demand, and these bills are the most significant effort to do so since Roe was decided in 1973.
Indeed, the seeds for this revolution lie at the very foundation of Roe itself. In his dissent from that ruling, Justice William Rehnquist exposed its frail framework, expressing his disapproval not of the threat to human life that abortion posed, but rather of the threat to the law. He argued that the court had stepped beyond its boundary of duty and ability, stating, “To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment.” Because Justice Harry Blackmun, in his majority opinion, had with six other justices overturned an entire statute, Rehnquist condemned the decision as having negative repercussions that extended beyond the scope of its particular ruling.
This weakness was again apparent in the 1992 case of Planned Parenthood of Southeastern Pennsylvania v. Casey, where the court established that “undue burden,” defined as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability,” was unconstitutional. In this instance, the left-leaning Justice John Paul Stevens disagreed with the majority opinion, citing the “State’s interest in potential human life” and proposing at least a 24-hour waiting period, “ensuring that the woman’s decision is informed and thoughtful.” But although these cases have become among the most controversial in the nation’s history, up to this point, efforts to overturn them or to affect some facet of constraint have been largely unrequited.
In 2011, a “heartbeat law” — which would outlaw abortions (with a handful of exceptions) after the detection of an unborn child’s heartbeat — was proposed in Ohio but ultimately failed to pass. In 2013, both Arkansas and North Dakota successfully passed heartbeat laws, but they were later struck down by lower courts. In 2015, the rulings against those laws were both affirmed in the Eighth Circuit Court of Appeals, and the Supreme Court chose not to review the cases. Iowa passed a heartbeat law in 2018, but it was subsequently ruled unconstitutional this past January. Simply put, the variants of abortion reform laws sporadically spread over the past seven years have been unsuccessful in limiting the legality of abortion.
But these previous failed efforts — all thwarted by judges rather than by voters via the democratic process — certainly haven’t discouraged pro-lifers from continuing to fight in politics to defend life. Instead, pro-lifers have been unrelenting in their pursuit of pro-life legislation, and in the past month alone eight states have passed new laws. This includes the much publicized Alabama law banning nearly all abortions, as well as new heartbeat laws in Missouri, Mississippi, Ohio, and Georgia, as well as pro-life legislation in Utah and Arkansas.
So this begs the question: with widespread failure of such anti-abortion bills in the past, why have state lawmakers decided to ramp up their efforts? Why pass laws that are undoubtedly going to be struck down by the courts? The most critical realization in this answer is that these laws are not a fired weapon, but a loaded one — no change has been truly enacted yet — and most are not set to go into effect for at least a couple of months and will doubtlessly be challenged between now and then.
Thus, the true goal of these bills is simple: bombard Roe with laws challenging it in as many states as possible and force the Supreme Court to finally take up the issue. As Rehnquist argued, the precedent that Roe v. Wade created was weak at best and unconstitutional at worst. It overrode the duties and jobs of state lawmakers, instead empowering the judiciary with the ultimate lawmaking authority. The judiciary was specifically designed to interpret laws, not create them, and yet the legacy of Roe has been to completely flip the script. Might constitutionalist justices like Thomas, Alito, Gorsuch, Kavanaugh, and yes, even Roberts, have something to say about that?
Ultimately, the Supreme Court has discretion in which cases it chooses to take — up to this point it has avoided addressing the bad precedent set by Roe and worsened by Casey. However, as more pro-life bills are passed in more states, and as the issue captures the imagination of the American public, it would seem that the Court would have an obligation to weigh in sooner rather than later. Will it finally do so, and overturn the most controversial ruling of the modern era? For now, pro-lifers can only wait and see.
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