Analysis

Overturning Roe would require abortion advocates to persuade voters

Following a big loss for the abortion industry with the election of Republicans to the White House, House of Representatives, and Senate, Planned Parenthood continues to beg for donations using scare tactics, as it fears for the fate of Roe v. Wade. The nation’s largest abortion provider is pushing the “WE reject your hate” narrative as part of #WeWontGoBack. This is in reference to President-Elect Donald Trump’s pro-life campaign promises, namely to nominate judges to the U.S. Supreme Court who would be more likely to overturn Roe v. Wade and Doe v. Bolton.

With the outrage and categorization of Trump, you would think abortion was on its way to being completely banned tomorrow.

The New York Times recently claimed that Trump had “softened” his stance on immigration, “but not on abortion.” The NYT admits that Trump acknowledges that, if Roe were overturned, the abortion issue would return to the states. Trump also mentioned this in his interview with CBS’ 60 Minutes, which aired Sunday. As interviewer Lesly Stahl tried to get Trump to say that overturning the decision meant “some women won’t be able to get an abortion,” the President-elect correctly asserted, “No. It’ll go back to the states,” and added that women will “perhaps have to go… to another state.”

Such a recognition means that Trump actually understands the consequences of an overturned Roe decision. As Live Action News writer Calvin Freiburger explains:

The sequence of events that would have to happen before states could directly ban abortion includes not only replacing the late Justice Antonin Scalia, which would leave the Supreme Court with a 5-4 majority in favor of Roe, but also replacing at least one additional pro-Roe justice. Then, a new lawsuit over a state abortion ban or one similarly focused on the issues in Roe would need to reach the Court.

In addition, overturning Roe would only directly end abortion in fifteen states. Eleven of these states have unenforced abortion bans currently on the books, and four have passed laws stating that abortion will not be allowed once Roe is overturned. Separate abortion bans would have to be enacted in the remaining states, or Congress could possibly pass a federal abortion ban under its authority to enforce the 14th Amendment. Pro-lifers in those fifteen states would also have to defend the laws from pro-abortion attempts to repeal them.

The fact is, overturning Roe v. Wade would not ban abortion in a nation which is only one of four which allows for abortion on demand up until birth. It would also not ban the procedure in most states. Abortion advocates have decried overturning Roe, but such a result would only force them to be on a more level playing field when it comes to debating abortion. Since Roe overruled the right of states and their voters to ban abortion, abortion advocates have been celebrating a disingenuous victory that was handed to them over 40 years ago.

The 14th Amendment, which should be used to protect all lives, including those of preborn children, was instead interpreted by seven male Supreme Court justices to contain a right to privacy, which was then interpreted to mean a right to abortion. If the lives of preborn children are not to be protected under the 14th Amendment, they could at least be protected by the states who do not want such unlimited abortion access, as they are protected under the 10th amendment, which reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The late Supreme Court Justice Antonin Scalia believed in states being able to decide their own laws on issues such as the death penalty and abortion. As an excerpt of Scalia’s own words in Taking Sides: Clashing Views on Political Issues by George McKenna and Stanley Feingold lays out:

You think the death penalty is a good idea: persuade your fellow citizens and adopt it. You think it’s a bad idea: persuade them the other way and eliminate it. You want a right to abortion: create it the way most rights are created in a democratic society. Persuade your fellow citizens it’s a good idea, and enact it. You want the opposite, persuade them the other way. That’s flexibility. But to read either result into the Constitution is not to produce flexibility, it is to produce what a constitution is designed to produce: rigidity.

Abortion advocates may have reason to worry, as public opinion seems to be trending pro-life. A recent post-election poll from the Family Research Council Action shows that the GOP’s pro-life platform swayed many to vote for them. Other polls have shown that Americans across all demographics and opinions favor abortion regulations.

So while abortion advocates may act like a Trump administration nominating pro-life judges is causing the sky to fall, that’s not quite reality. If Roe is overturned, they’ll just have to fight for a right to abortion on the local level instead of taking for granted that the Supreme Court invented a ‘right to abortion’ out of nothing — and that is what they’re afraid of.

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