Should we leave it up to the states?

Gavel and Ultrasound

Will a “states’ rights” argument get the job done…or is there more to it than that?

We are fast approaching the 40th anniversary of Roe v. Wade, the Supreme Court decision which legalized abortion on demand throughout the country.  I do believe that it is worth thinking about what it was like before this notorious decision was handed down. In particular, it is important to consider if, prior to the 1973 court decision, it was a safer time for unborn babies in the womb. Well, once the court’s decision was handed down, it couldn’t really have been a worse time for unborn babies. But, prior to 1973, it could still be pretty bad, depending on your state.

From beginning around 1825 until 1970, every state had codified criminal statutes on abortion, as mentioned by Steven Aden of Alliance Defending Freedom at the Law Students for Life tour event “Should Roe Survive Another 40 Years?” In 1970 in New York, my home state and a staunchly liberal one when it comes to abortion, a vote was passed to make abortion legal, and with no residency requirement. So prior to Roe,there still was very much a fight against abortion, at least in states like New York. The Supreme Court only set the movement farther back. Thus, the 1973 decision didn’t really do anything to change New York’s laws, but rather made the whole country like this one state when it came to this so-called “right” to an abortion.

If and when Roe v. Wade is overturned and the decision of abortion goes back to the states and their legislatures, is there any good news? Of course there is. For those who see abortion as a states’ rights issue rather than a right to life issue, this would very much be a victory. While the issue is more about the right to life than about states’ rights, it is the latter as well. Roe was destructive not only for the rights of the unborn, but for states’ rights to pass any kind of legislation against abortion. In Texas, for instance, the state where Roe was brought forth from, the entire chapter of abortion statutes was struck down. The same happened in all 50 states, all because abortion was supposedly a fundamental right. That may have been 1973, but states still feel the effects today, as the Obama administration has intervened regarding states’ decisions to fund Planned Parenthood. And since the summer when I wrote an article on the issue, the administration also got involved in Planned Parenthood’s lawsuit against Arizona for de-funding the organization.

But such a handling of abortion laws would be good for pro-lifers as well, at least in a sense. Just as there are states that are liberal on abortion, there are also states that are conservative. The Guttmacher Institute has a brief from just this new year which puts the number of states restricting abortion at 20, including 4 which would automatically ban abortion if Roe were overturned. A report from the Center for Reproductive Rights from 2007, which also refers to the original 2004 report, put the number at 30 states which would possibly ban abortion. Now, if you read or even just skim through any of the report, you can see that the CRR refers to the pro-life movement as “anti-choice” and very much uses scare tactics when discussing What If Roe Fell? I don’t mind having our opponents scared, but 30 is still not all 50. One battle might be won, but the fight would not be over yet.

There is, of course, a downside to states getting to pick their own abortion laws. This is why we cannot stop there when it comes to the fight against abortion. I see the same issue with being personally pro-life but in reality pro-choice. The fact that you are personally pro-life is great news for your own child, but if abortion is so wrong for you or your child, why is it right or any less terrible for another woman and her child? Abortion is still the death of an unborn child and possible damage of the mother, no matter whom the abortion is actually performed on. The pro-life movement should seek to protect all unborn children. If abortion rights were as they were pre-1973, or similar, unborn babies in New York, for instance, would still be in grave danger, as would unborn babies whose mothers are able to travel to New York to have them aborted. How I see it is that it is nothing less than a form of discrimination to say that a baby conceived in or near a state with abortion is any less deserving of the right to life than a baby conceived in a state where abortion is outlawed.

What is the solution, then? I say let’s use the 14th amendment as it should have been interpreted from the start and grant unborn children equal protection of the law. The Supreme Court in 1973 not only misinterpreted the Constitution then, but did so in a way that claims the 14th Amendment protects the right of privacy and that this includes the right to abortion. Just over  month ago, LifeSiteNews wrote about Sen. Rand Paul’s plan to “end abortion on demand once and for all” with the Life at Conception Act. The article mentions that “[t]he law would establish that human life begins at conception, and extend 14th Amendment protection to babies in the womb.” I stand by Rand Paul and such a proposal. It is a shame, though, that we have to pass a law to grant the unborn legal rights when they should have already been guaranteed such a right all along.

Like all other pro-lifers, if, God willing, I am alive to see the day, I will be celebrating when Roe v. Wade is overturned. And I will be thankful for the four states of Louisiana, Mississippi, North Dakota, and South Dakota (though I certainly hope it will be more states by then) where the unborn will be legally protected. But I will not stop the fight there. I am wary of politicians who highlight states’ rights in their discussion of abortion rights, and you should be, too. States’ rights is not the fundamental issue here; rather, the right to life is, and that right to life should be protected by the Constitution, as it should have been all along. Thus, Roe will hopefully turn out just to be a setback to our movement.

I did mention states’ rights angle earlier in the article and I’d really like to hear your opinion on the issue, though, particularly if you do see the Roe v. Wade debate as a states’ rights issue. And what do you think of politicians who campaign on it as such, whether pro-life or pro-choice? Also, do you have another solution in regards to abortion?

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