Following a wave of new state laws significantly restricting abortion, Catholic pro-life advocates and legal experts are divided over whether such bills offer a winning strategy for the eventual overturn of Roe v. Wade or if they threaten decades-long strategies to gradually prohibit abortion.
An Alabama bill, which was signed into law last week and is now the most restrictive abortion law in the nation, has become a flashpoint - provoking widespread rage among abortion rights activists and dividing pro-lifers, some of whom prefer an incrementalist approach that chips away at abortion access, while others seek a head on challenge to the Supreme Court’s 1973 decision that established a constitutional right to abortion at any point during a pregnancy.
Along with Alabama, states such as Missouri, Ohio, and Georgia have passed similar legislation that bans abortion after a fetal heartbeat is detected, as early as the sixth week of pregnancy. According to Catholic legal experts, such laws are likely to face significant legal hurdles and whether or not they will manage to secure greater legal protections to human life remains an open question.
A ‘Wholesale’ Challenge to Roe?
The recent flurry of new state legislation clamping down on abortion has been largely motivated by two developments: the belief that a new make-up of the Supreme Court presents an unprecedented opportunity to overturn Roeand reaction against a swell of other states, such as New York and Vermont, seeking to expand abortion access and codify Roe as part of their own state laws out of fear of Roe’s eventual overturn.
Greg Schleppenbach, associate director of the Secretariat of Pro-Life Activities at the United States Conference of Catholic Bishops (USCCB), told Crux that while “any legislation that would provide further protection to the unborn is good in and of itself,” the U.S. bishops’ “historically have had a general hesitancy about supporting bills that aren’t likely to be upheld as constitutional.”
He said that such an approach was based largely on the Supreme Court’s composition with Justice Anthony Kennedy on the bench and the belief that there was a “real risk of a Kennedy court further reaffirming Roe” should there be a challenge against it.
Yet the recent replacement of Kennedy with Justice Brett Kavenaugh, who was confirmed to the Court last fall, means “that concern is lessened,” according to Schleppenbach.
As for the recent Alabama law, and others similar to it, Schleppenbach believes “whether it’s the best and most advantageous legislation to be a challenge to Roe is anyone’s guess.”
“There is still concern that this current court might be hesitant in a wholesale overturning of Roe and that it might be more comfortable with rolling it back incrementally,” he continued.
To date, Schleppenbach says that the likelihood of heartbeat bills reaching the Court is “challenging,” as every one has been struck down to date.
Such a history makes him somewhat wary when thinking that the high Court will consider this current version, but it remains to be seen.
He speculated that if the make-up of the Court shifts further - and that if a likely sixth justice were appointed that would support such legislation, particularly if that justice were a woman - “you may see the Court accept a case that would go at the heart of Roe.”
Electoral Politics and the Court of Public Opinion
While much of the controversy surrounding the Alabama law, and others of its kind, have centered on whether it has the constitutional muster to mount a challenge to Roe, Rick Garnett, a professor at the University of Notre Dame’s School of Law and the director of its program on Church, State and Society, told Crux that calling into question the jurisprudence that undergirds Roe is fair game.
“There is nothing unconstitutional or otherwise wrong with legislators enacting laws that contravene wrongly decided Supreme Court precedents in order to force a re-examination of those precedents,” said Garnett, noting that both Roe and the follow-up case of Planned Parenthood v. Casey in 1992 both established precedents that are subject to serious scrutiny.
While Casey ultimately reaffirmed Roe, it also opened the door for tighter restrictions to abortion, and according to Garnett, “It could be that the justices would prefer to review abortion regulations that can be upheld without squarely overturning the Casey precedent.”
“On the other hand,” he continued, “a majority might think that because Roeand Casey wrongly removed this question from electoral politics and the court of public opinion, it is past time to correct that mistake, and leave it to citizens and their representatives to decide what the appropriate abortion-regulation regime should be.”
Helen Alvaré, a professor of law at George Mason University’s Scalia Law School and a former spokeswoman for the U.S. bishops, concurred, saying pro-life activists should “remind voters that getting rid of Roe simply means allowing citizens to do what they wish at the state level.”
“This will likely result in some bans, some New York style legislation with all abortions at all times, even possibly post- birth death of survivors, and some in-betweens,” Alvaré told Crux.
“Pro-life activists should stress that they are taking the local, democratic path, and that legal abortion activists are doing the same. The latter are concerned because they know that they don’t have anything like the commanding majority they often assert,” she continued. “The former know they will win some and lose some, but that at least democracy will take its course.”
Alvaré also said she hopes the current moment, and whatever challenges such laws bring, will allow for greater “legal honesty” in discussions over abortion jurisprudence.
“It would be best if the Court acknowledged…that Roe is dishonest. There does not exist in the history and tradition of the nation…any embrace of a right of legal abortion. A Roe majority made it up out of whole cloth. Caseyrefused to say Roe was right, but feared that abortion was too instantiated into American lives to overturn it,” she said.
“The thousands upon thousands of bills introduced in every state legislature since 1973 trying to get rid of Roe, the thousands introduced in the past few years even as the possibility for Roe‘s overturning seem greater, these are nothing if not evidence that the country has never made its peace with abortion for any reason at any time before birth,” Alvaré insisted.
“These are proof positive that abortion could never be so ingrained in our national character that the Court can assume a right to say that it’s in the Constitution even while not in its text,” she added.
“While the country and the American people has not declared itself ready for a total ban on abortion, they are and have been for 46 years, ready for more abortion restrictions, which the Court has rarely let them have,” said Alvaré. “Roe has to go in order for their wishes to be fulfilled.”
“The honest legal path is for the Court to state that Roe and Casey are intellectually, constitutionally unsound and that states can take this to the people, which they are doing now, and coming up with wildly different results, like states do about a thousand different things in law,” she concluded.
Legal and Cultural Change
Looking ahead to a day when either Roe is overturned or greater statewide restrictions are put into place, some Catholic pro-life legal scholars and advocates are also using this moment to warn that legal bans will not prove a silver bullet to building a culture of life.
“Pro-life citizens should, in addition to working to undo the Court’s mistakes, continue to formulate policies and support efforts to change hearts and minds and to support pregnant women and vulnerable mothers and families,” Garnett observed, in forecasting what comes next on the cultural frontier for the pro-life cause.
Schleppenbach agreed, saying that in addition to legal and legislative initiatives, the USCCB pro-life office is also spending time urging states to reconsider their policies to better support vulnerable women and children, alongside their efforts to provide greater legal protections to the unborn.
“I think it’s important that we evaluate and that we address all of the institutional policies and structures at the state level to ensure that women who have difficult or unintended pregnancies have all of the support and mechanisms that they need, especially as we are hopefully closer to the day of seeing Roe v. Wade overturned and see this turned to state level.”
“How we do what we do is just as important as what we do,” he concluded.