Abortion Bans: Let’s Have the Fight
Scott McKay
by
March for Life 2019 in Birmingham, Alabama (Luisa P Oswalt/Shutterstock.com)

Since last week, when Alabama joined several other states — Georgia, Mississippi, and Ohio among them — in passing a bill seeking to greatly restrict legal abortions within its borders, the Left has gone almost completely berserk in protest.

This wasn’t a surprise, since to the Left abortion is akin to a religious sacrament and extremism in support of ending the lives of the unborn is no longer a vice (nor moderation a virtue) to them. When Planned Parenthood is exposed as running an underground marketplace for the chopped-up remains of aborted babies and the response is to kill, or at least arrest, the messenger, when a movie telling the true story of a Planned Parenthood manager who had a crisis of confidence surrounding the organization’s practices and became pro-life has to be deleted from theatres, when activists are running free on social media with hashtags like #ShoutYourAbortion… you would expect a normal political movement to hustle to rein itself in for fear of losing the high ground with the American people.

The pro-abort Left has done none of this. Instead, it celebrated a bill in New York that would functionally legalize abortion all the way through pregnancy — with that state’s governor lighting the Freedom Tower pink in tribute. And in Virginia a Democrat legislator, with the backing of that state’s horrifically inappropriate governor, brought a bill which would have essentially legalized infanticide. That one, thankfully, did not pass.

The public is slowly growing more pro-life, polls show. Younger Americans are more pro-life than their parents. Despite hundreds of thousands of abortions per year it looks like the public is moving away from the practice — partially because of technology.

Forty years ago there was no ability for a pregnant mother to see her baby in the womb in the kind of detail modern sonograms can offer. There was not the ability to detect a fetal heartbeat in the detail available today. By the beginning of the second trimester it’s difficult to continue pushing the line that what’s in the womb isn’t a human being. And the time at which a fetus can be viable outside the womb is becoming earlier and earlier due to medical technology. Some day soon there will be no justification at all for aborting an unborn baby; not when medical science can remove him or her from the womb and preserve him or her for life apart from the biological mother.

All the while America, with its people starting families later and later and its fertility less and less certain as a result, is awash in parents begging to adopt children. Increasingly Americans are scouring the globe in search of babies in China, Central America, Russia, and Africa to make their own. All while those hundreds of thousands of babies are chopped apart and killed in charnel houses in bad neighborhoods in cities across the fruited plain.

So can anyone blame legislators in Alabama for saying “Not here, not one minute more”?

If not now, when? If not a full abortion ban to test the shaky foundations of Roe v. Wade, what?

Clyde Chambliss, the state senator who carried the Alabama bill, says it’s intended to create the constitutional fight:

The way that this bill is drafted — it goes to ask the question of personhood. The 14th Amendment gives people, a person the right to life, liberty and property. But it doesn’t say when a person becomes a person. Obviously, if somebody is walking around, we know that’s a person. In the womb, do we know if that is a person or not? Unborn babies can hear, they can feel — at what point can they hear and feel and think and feel pain?

We need some guidance from the Supreme Court. So this bill has been drafted so that it goes directly to that question. It goes to the Supreme Court, hopefully. And we do expect it to be ruled unconstitutional at the lower court. It has to be. It has no choice because they have to follow Supreme Court precedent. That’s no surprise. We know that’s going to happen. We know that will be found unconstitutional on appeal, but hopefully, we’ll have the Supreme Court to take up the matter. And we hope and we feel that the Supreme Court will rule this law constitutional because it gets to that personhood issue that is so, so important.

Chambliss and Rep. Terri Collins, the bill author on the Alabama House side, are very clear that the intellectual basis of the bill is the personhood of the fetus. That’s why the Alabama bill struck out exceptions for rape and incest — as Collins asked, “Well, how do we say, ‘The baby inside is a person unless they’re conceived in rape or incest’? If that amendment was to get on the bill,” she said, “then I’ll kill the bill because it won’t go to the Supreme Court. It will contradict itself.”

If you believe that’s a human being in there, you can’t kill it. That’s the essence of the Alabama bill. It’s the essence of the pro-life movement. And if you agree with that proposition you cannot also agree that waiting for more favorable political circumstances is preferable to taking every opportunity to pick the fight.

Politically, the Alabama bill might not be the right idea. Politically, stoking the Left’s outrage and stirring up its voters in advance of 2020 might be a risky move. But if politics is all that matters, what’s the point? At what point do politicians make so many promises they’ll never keep that the voters stop even bothering? And how does the Overton Window move in a positive direction without direct action to move it?

Nobody cautioned New York that its hyperaggressive pro-abort legislation would gin up pro-life voters across the country, though clearly given the counterattack from the pro-life movement in the red states that’s precisely what happened. But now we have the landed political gentry in Washington telling the redneck rubes of their mistakes — Republicans, you see, must never actually follow through and make their rhetoric a reality for fear of what the other side will do.

Balderdash. There is no point in holding an actionable political majority unless one uses it to bend policy to that majority’s will. Assuming that a pro-life policy agenda is better for the people of Alabama, an assumption which our conservative betters don’t even challenge, fiddling about while hundreds of thousands of innocent lives are snuffed out essentially to preserve sex as a method of entertainment is hardly a laudable stance. Those same wise masters, after all, are responsible for squandering the House GOP majority in 2018 largely due to an inability to pass the agenda the voters sent them to Washington to make a reality.

Is the Supreme Court ready to overturn Roe v. Wade? There isn’t much reason for confidence. That said, the Alabama bill cuts to the heart of that decision’s weakness. National Review’s David French last week recounted a conversation he had with Ed Setzler, the author of Georgia’s heartbeat bill, in which the state representative noted that Roe’s own language identifies its demise:

Specifically, he pointed at a provision in Part IX of Justice Blackmun’s opinion, where Blackmun states that if the “personhood” of the baby is established, then the pro-abortion case “collapses.” The late Supreme Court justice was of course discussing the definition of personhood under the federal constitution. Setzler, however, notes that Supreme Court doctrine has long allowed states to expand constitutional liberties. They can establish standards of religious freedom, free speech, or due process, for example, that go beyond the First and Fifth Amendments. They cannot be more restrictive than the federal Constitution.

In the abortion context, this doctrine traditionally has been interpreted to allow states like New York to protect abortion rights beyond the minimal threshold required by Roe and Planned Parenthood v. Casey. Georgia (and potentially Alabama) would be asking the Court to permit them to expand the constitutional liberty of the unborn child and to recognize the distinct human identity of the baby in the womb.

In other words, Georgia and Alabama are saying: “We’ve read Roe, and we’re making the very legal statement that Justice Blackmun says would fundamentally undermine the case for abortion. Under our federal system, we can expand the legal definition of life.” While pro-life Americans can and do engage in good-faith debates about tactics, I prefer the most direct approach. Tell the Court what life means. Make the Court break the federal system once again.

Again — it’s possible that the bills in Alabama, Georgia, Mississippi, Ohio, Missouri, and Louisiana, among other states, which directly challenge the status quo will risk the current political drift toward the pro-life cause. But political capital is built on victory, not inaction, and it’s wasted if it’s not spent. After all, the Left paid a dear price for Obamacare — but elements of it are still in place despite Trump’s victory and rather than being destroyed for mutilating private health insurance Democrats once again control the House.

Given that reality, there is no reason not to take a shot at stopping the killing. Kudos to those state legislators willing to risk their political futures. Fortune — and history — favors the bold.

Scott McKay
Scott McKay
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Scott McKay is publisher of the Hayride, which offers news and commentary on Louisiana and national politics.
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