Posted on 06/10/2021 7:14:46 AM PDT by Kaslin
The right-to-life movement’s sole aim is to ensure that the rights of all humans, unborn and born, are legally protected. Let’s start acting like it.
In the wake of the U.S. Supreme Court’s recent decision to reconsider Roe v. Wade this fall, Clarke Forsythe, senior counsel for Americans United for Life and perhaps the most well-known pro-life attorney, proclaimed:
The court desperately needs to decentralize the [abortion] issue and send it back to the states … pro-life leaders need to think long and hard about overturning federalism and taking the issue away from the states.
Forsythe’s view is consistent with his recent Wall Street Journal article, which advanced the view that “the high court could put questions about gestational limits [for abortion access] back into voters’s hands — where they belong.”
Since America is a constitutional republic and not a direct democracy, Americans don’t vote to decide who deserves the protections guaranteed under the U.S. Constitution. Imagine a state with anti-immigrant leaders convincing its citizens to amend state homicide laws so they only apply to victims who are citizens. Unthinkable.
Unfortunately, however, this is a matter of debate in the pro-life movement. While some advocate for the use of a states’ rights approach to overturning Roe, others support pushing for protecting the unborn’s right to life.
Members of the first camp argue the Supreme Court should merely allow states to craft whichever abortion laws their citizens prefer. The second camp believes the Supreme Court should recognize unborn humans as persons within the meaning of the Fourteenth Amendment’s Equal Protection Clause, an interpretation amounting to a constitutional mandate requiring states to protect unborn humans with the same homicide laws that protect born humans outside of the womb.
Law professor Mary Ziegler describes Forsythe as “a brilliant strategist” and the states’ rights approach as a “savvy argument.” She recently boosted years of speculation that the only difference between the two camps is merely a matter of strategy. This theory suggests people such as Forsythe do not truly believe the legality of abortion should be democratically decided; they solely support the states’s rights approach as a moderate, incremental step on the path to rights for the unborn.
But is the divide genuinely borne out of differences of opinion on timing and strategy? Or, might there be sincere, fundamental differences between those who oppose Roe due to its federalization of America’s abortion laws, and human rights advocates, who oppose abortion because they believe all humans equally deserve constitutional rights?
Consider the words of the late Justice Antonin Scalia, a proud pro-life Catholic and hero to many in the pro-life movement. In the 1992 case that upheld Roe, he endorsed the states’ rights approach by claiming the Supreme Court “should get out of this area [of abortion law], where we have no right to be, and where we do neither ourselves nor the country any good by remaining.”
Years later, during an interview on “60 Minutes,” he rejected the rights of the unborn argument:
They say that the Equal Protection Clause requires that you treat a helpless human being that’s still in the womb the way you treat other human beings. I think that’s wrong. I think when the Constitution says that persons are entitled to equal protection of the laws, I think it clearly means walking-around persons.
They say that the Equal Protection Clause requires that you treat a helpless human being that’s still in the womb the way you treat other human beings. I think that’s wrong. I think when the Constitution says that persons are entitled to equal protection of the laws, I think it clearly means walking-around persons.
Corporations are persons.
Why not unborn humans?
Background: part of the Bill of Rights is the 10th Amendment with its "enumeration" clause -- stating that the federal government ain't got no business doing anything not explicitly stated in the Constitution -- those things are left to the states. Well even that has an "interstate commerce" clause that says the federal government can intervene in matters of trade across states.
So even us libertarian minded people who for years have hopelessly been saying the government should respect the 10th Amendment's enumeration clause (and thus us pro-life libertarians have argued to let the states settle abortion) have to admit that the selling of baby body parts across state lines means we can implement a national pro-life policy without violating the Constitution.
Nice point!
Yeah ... but of course the federal seems to be buying those part on the sly.
It is in this line of thinking that the court should instead rule in favor of 2nd amendment as a constitutional matter over infringing state laws, thus overturning all state laws that undermine the 2nd amendment.
Agreed they are citizens and their right to life should be federally protected.
Non citizens here on say student visas or tourists, well they can go home to kill their child if they must. Some day we won’t do that here.
The supreme court shouldn’t ban anything but to perform their function...returning the issue of abortion back to the states and to the people is what is needed.
Yet I wish constitutionally they could ban it. On the other hand the Supreme Court forcing the feckless politicians to do their duty instead of allowing them to throw every hard moral question upon the aegis of the SC would go along way to restoring proper balance to the Federal Government!
Agree !
Sadly, you are exactly right.
> They won’t return abortion to the states and they most definitely will not ban it altogether. <
Agreed. The abortion issue today is something akin to the slavery issue from 150+ years ago. Both are evil. But the pro-slavery folks had their arguments, as ugly as those arguments were. Just as the pro-abortion folks have their arguments, as ugly as those arguments are.
No Supreme Court dared to outlaw slavery. And no Supreme Court would dare to outlaw abortion. As AnotherUnixGeek noted, that would take a level of courage most justices do not possess.
So what’s the answer? Another civil war? Of course not. As I see it, the pro-lifers need to mount a massive publicity campaign to convince darn near everyone just how wrong abortion really is.
Along those lines, I’d like to back that up with my own money. Is anyone here aware of a good organization that is trying to get that that message out?
Yep. The only thing missing from the fantasy article was "when Sans-Culotte wins the Powerball lottery".
Absolutely. Plenty of precedence.
Bottom line: if it goes back to the states, it's likely that none of them would ban it because places like google, amazon, twitter, airlines, sport franchises, etc would all cease operations and shut those states down until they comply the wishes of the dear leader in DC.
I do not think the SCOTUS has Constitutional grounds to, federally, outright ban abortion, but they do have grounds to return the matter, 100%, to the states. THAT was also Scalia’s position - its not, Constitutionally, a federal matter.
At the VERY minimum, SC needs to rule that the Equal Protection Clause should apply to the pre-born at the age of viability, which the medical community consensus is 24 weeks. This is the point in which doctors will take extreme measures to save the life of the pre-born.
Note that the Equal Protection Clause applies to both citizens and non-citizens, so this would not open up the pre-born citizenship can of worms.
What will they ban next?..Fossil fuel?...Guns?
Be careful what you wish for.
It becomes a Federal/Constitutional matter if the SCOTUS rules that the pre-born is a human life at some age.
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