Interstate Abortion Bill and Overturning Roe

In July 26th's Washington Post, Charles Babington reports that the Senate has passed a bill penalizing non-parents who transport their children across state lines to procure an abortion. The prospects for passage are not certain, although they are more certain than other items in this years legislative program. This is because it could be used later to re-air the question of Roe in the event that one more Justice on the pro-choice side dies or retires. The partial birth abortion ban has, as intended, gone to the Supreme Court but it does not have the votes to survive and certainly not enough to overturn Roe, as many of the amici for the Administration seek.

Any look at the provisions of the Partial Birth Abortion Act itself will leave the average reader with the impression that "they can't be serious". This act was never meant to be enforced, but to extract Catholics from the Democratic Party (which is why the Court should have never accepted the case) and to force a re-examination of Roe v. Wade.

I generally disagree with attempts to overturn Roe, not because I am any fan of abortion, but because the plain text of the 14th Amendment seems pretty clear that birth and naturalization are how one attains citizenship and legal protection. While such protection has been extended to aliens by the courts and congress, it has not been extended to the preborn, except as an adjunct to punishing violence against the mother not related to abortion. The implication of this is that only Congress may change their status, not the individual states through varying abortion laws. The reason that the nation was torn apart by slavery was the assertion that states could go their own way. This issue was settled at Appotomax and ratified by the 14th Amendment. Any solution to abortion must come through Congress, not the states. Importantly to this case, because no such language was contained in the Act in question, the legal rights of the fetus cannot be given any weight in federal law.

The originalism of Justices Scalia, Thomas and Roberts must also be challenged. Their view of the 14th Amendment is jaundiced at best and ignores the intent of James Madison, who originally included it in the Bill of Rights, where it was passed by the House but removed by the Senate. It was intended as a check against electoral majorities in the states, which is the use to which it has been put for the past fifty years. As Madison conceived it, it was certainly not just for the protection of Freedmen, but for the protection of any aggreived minority. For more information, see Gary Wills volume, A Neccessary Evil.

On policy analytic grounds, legal restrictions on abortion fail. In the discipline of policy analysis, there are four foundational values: economic efficiency, effectiveness, equality and responsiveness.

Overturning Roe fails on effectiveness because it may not actually stop any abortions as women will simply cross state lines to procure an abortion. It will also lead to dangerous alternatives to women, such as the procuring of unsafe abortion, leading to the potential loss of two lives in order to save one.

Overturning Roe fails on responsiveness because the majority of the public do not favor doing so. While they may favor reasonable restrictions, they do not favor the pre-Roe status quo.

Overturning Roe fails on equality, as you have so ably said in your original complaint, because it impacts women more than men and more importantly impacts poor women who cannot afford to travel to procure an abortion more serverly than those who could.

Overturning Roe also puts us on a slippery slope toward a general infringement on civil liberty, as it would lead to efforts to infringe on the right to free travel, which is a basic right in a democracy, as states would naturally seek to prevent women in its jurisdiction from crossing state lines or traveling through a state to procure an abortion.

In the current case, the soundest strategy for the Court, including its pro-life members, is to acknowledge that the states have no role to play in granting rights to the preborn, thus affirming Roe. This would come under the heading of losing the battle and winning the war, since a return to pre-war abortion jurisprudence would mean that women would simply travel to other states to procure abortions, or self-induce or go to back alley abortions if they cannot afford to travel. It is better to leave the question of fetal rights at the door of Congress, especially if the Court leaves it there and acknowledges, much to its own shagrin, that under the Constitution the unborn are the PROPERTY of the mother. This echo of Dred Scott will cause enough of an uproar to force Congress to act.

How should the Congress act? Frequent readers of this blog know that the best way to end abortion is not to criminalize it, but to change the economics and culture of having children.

The Church can do this even if no laws are changed. It is a shame they have been hiding behind Roe as an excuse for not taking independent action. If a majority of the Court does as I suggest and affirms Roe in a way that brooks no further argument, the Church will no longer have this excuse.