Abortion and a Constitutional Showdown
(Continued)
Dispelling A Common Misconception
Many people within the pro-life movement appear to believe that simply overturning Roe will accomplish our mission. That is not necessarily true. On one hand, because the Constitution acknowledges a right-to-life for all “persons,” if the Court were to reverse Roe on the basis that the unborn are persons, their Constitutional right-to-life would be affirmed and the battle would be over. This was even stated within the text of Roe by its author, Harry Blackmun, when he wrote that if the personhood of the unborn is ever established, the Constitutional right to abortion collapses.
But it is possible for the Court to overturn Roe while completely ignoring the personhood argument. All they have to do is rule that the Constitution is silent on abortion and that it is, therefore, a “states’ rights” issue. And most legal experts on both sides of the conflict have consistently predicted that, if the Court overturns Roe, this is the basis upon which it will do so.
For the Supreme Court, a states’ rights ruling would be the easy way out of the abortion quagmire. It would allow them to dodge the “can-a-living-human-being-be-a-nonperson” argument, and by sending the issue back to the states they will have washed their hands of it once and for all. For them, that’s a win-win situation.
But for the unborn, a states’ rights ruling would be a disaster. In a short time, the United States would become a “patchwork quilt” of laws in which some states would prohibit all abortions, others would allow them with no restrictions, and the remaining would take some middle ground approach. The problem is, given that state lines are freely crossed, there would be nothing to prevent an unborn baby in Texas – whose life might be protected by state law – from being transported to California or New York for execution. In fact, because of the vast amount of financial profit involved, some states are certain to set themselves up as “destination sites” for abortion, especially those that border a state (or states) that restrict or prohibit abortion after Roe falls.
What this means is that, since a states’ rights approach cannot protect every baby in every state, it doesn’t protect any baby in any state, and that would leave every unborn child in America vulnerable to abortion. It would also guarantee that the battle would go on indefinitely and that the tiny corpses would continue to pile up.
A Line In The Sand
Today, the abortion issue is like a chicken bone that’s stuck in the throats of the American people. It is too painful for them to live with, but they can’t pull it out and they can’t swallow it. This has created what I call “abortion fatigue syndrome.” The public is sick of hearing about abortion; they don’t think there is any way to resolve the battle over it; they know neither side is going to quit nor compromise; and they would like nothing more than to see the whole issue just go away.
Abortion fatigue syndrome is also evident among the Justices on the Supreme Court. For that reason, if they were to render a decision that sends the issue to the states, it is highly unlikely they would ever agree to hear a case that would drop the issue back into their own laps. In effect, a states’ rights ruling could insulate the Supreme Court from any future abortion-related cases including those that might result in personhood for the unborn. If that were to happen, the “patchwork quilt” phenomenon described earlier would become the permanent and defining element of American abortion policy. This is a bomb that has been quietly ticking in the background of the pro-life movement for decades, and it could blow up in our faces at any moment.
At this point, what we need to remember is that there are three kinds of people in the world: those who make things happen, those who watch things happen, and those who wonder what happened. Because thousands of babies are still being butchered every day, and because the Republican Party and the Supreme Court have shown that they cannot be trusted with the fate of the unborn, and because of the bomb that’s ticking away in the background, it is time for the pro-life movement to make something happen. And it may be that the smartest thing we could do is force a case to the Supreme Court that combines the states’ rights argument with the personhood argument, using laws that are already in place.
With that in mind, imagine that the governor or attorney general of a state calls a press conference and announces the following:
Governor/AG:
“Given modern medical technology, it can no longer be reasonably denied that the unborn are living human beings. It is also true that no material distinction exists between a human being and a person. Rationally speaking, there is no such thing as a human being who is not a person and this is reflected in the fact that the English language does not have a word for a human being that is not a person. For those and other reasons, it is clear that the unborn are entitled to equal protection of the law under our state’s homicide statutes. Therefore, starting today I am directing every official within the state who has authority to bring criminal charges, to prosecute anyone found to have intentionally caused the death of an unborn human being.”
Reporter:
“Isn’t this in direct contradiction of a woman’s Constitutional right to abortion as established by the Supreme Court in Roe vs. Wade?”
Governor/AG:
“The issue being addressed here is homicide, and homicide statutes fall within the jurisdiction of the states. Abortion is simply one method used to commit a specific type of homicide. If someone in our state intentionally takes the life of another individual, whether by abortion or by any other means, we have a duty to prosecute them for that homicide and that’s what we will do. I also point out that, in the case of abortion, there may actually be a heightened exposure to criminal prosecution. Given that someone accepts financial compensation for committing a homicide, it may be that abortions could be prosecuted as contract killings.”
Reporter:
“If a federal judge orders you not to enforce the state’s homicide statutes against those who do abortions, will you comply?”
Governor/AG:
“As I said, homicide statutes are a state matter and the federal government has no authority to order us to single out and exclude any class of human beings from the protection of those statutes. The federal courts are free to ignore the biological and scientific realities of human existence if they choose to do so, and they can also accept the illogical, baseless, and arbitrary distinction between human beings and persons that was invented in Roe. But that is not the issue here. Again, homicide statutes are a state matter and it is my duty to see that they are enforced whenever any human being in this state – whether born or waiting to be born – has his or her life intentionally taken.”
Reporter:
“If this situation ends up in the Supreme Court, and it rules that you cannot enforce the state’s homicide statutes against those who perform abortions, would you then comply?”
Governor/AG:
“Once more, homicide statutes are a state matter and the Supreme Court does not have the authority to force a state to discriminate against a particular category of victims due to their birth status or because they have been arbitrarily classified as non-persons.”
Reporter:
“Will you also file charges against women who have abortions?”
Governor/AG:
“We will exercise prosecutorial discretion in that matter. Because of the way abortion has been portrayed and marketed over the years, many people have been convinced that an abortion is simply the removal of an inert mass of cells and are not aware that it actually ends the life of a living human being. We also know that a certain number of women who have abortions are forced, threatened or coerced to do so by others. Convicting a woman who had an abortion of homicide, would require us to prove in court that she knew that she was taking a human life and that she was doing so of her own free will. In cases where either of those things would be impossible to prove, prosecuting the woman who had an abortion would be an irresponsible waste of the state’s time and resources. However, due to the medical training abortion providers receive, there can be no doubt that they know what they are doing. Because of that, and because they are not being compelled by others to participate, it is appropriate that they face criminal prosecution.”
Reporter:
“Does that mean you would file charges against women who have abortions if you could prove that they knew it was murder and were not being forced?”
Governor/AG:
“Again, we will exercise our right of prosecutorial discretion and consider each case independently on its own merits.”
Reporter:
“Will you file criminal charges against members of the medical staff who assist in an abortion?”
Governor/AG:
“We will treat anyone within our jurisdiction who knowingly facilitates the intentional taking of a human life as an accessory to homicide, including those who do so by way of abortion.”
Reporter:
“Could this include school counselors or others who refer for abortions, or those who make arrangements for abortions, or the clinic receptionist who schedules abortions?”
Governor/AG:
“If it can be shown that their actions were part of a chain of events that resulted in the intentional taking of a human life through abortion, and they knew or should have known that this was a foreseeable outcome, criminal charges are certainly possible.”
Note:
I refer to a governor or attorney general as the person who sets this campaign in motion, but it could be anyone who has the authority to either bring criminal charges or direct that criminal charges be brought. Possibilities might be district attorneys, state’s attorneys, state law enforcement officials, etc.