How to work against Roe v. Wade

Justin Taylor posts the text of an interview with Clark Forsythe of Americans United for Life.  Forsythe’s recent book, Politics for the Greatest Good: The Case for Prudence in the Public Square, looks quite interesting, and he and Taylor discuss some of the content of the book in the interview.

Forsythe describes the difficulties of undoing Roe by asking the Supreme Court to apply the 14th Amendment to the unborn:

It is not simply “improbable” but almost certainly impossible in our lifetime. That’s because every single justice since Roe has rejected it (the proposition that the unborn child is a “person” within the meaning of the Fourteenth Amendment), including the most anti-Roe justices, Justice Scalia and Justice Thomas. And Scalia and Thomas have rejected it for at least two or three reasons. First, the words “abortion” and “unborn child” are not in the Constitution; they weren’t specifically considered by the framers of the 14th Amendment. Second, Justice Scalia and Thomas believe that the abortion issue was and is an issue for the states to decide, as a constitutional matter. The third is perhaps the most powerful and the one most often ignored by pro-lifers: Scalia and Thomas want the Court out of the “abortion-umpiring business,” which they think has undermined the integrity of the Court as a constitutional and political institution. The declaration that the unborn child is a “person” within the meaning of the 14th Amendment would not extract the Court but thrust it more deeply into the “abortion-umpiring business.” So, for both constitutional and institutional reasons, Scalia and Thomas have at least implicitly rejected 14th Amendment “personhood,” and it’s almost certain that any justice nominated by even a pro-life president and confirmed by the Senate in the next 20 years will be heavily influenced by the reasoning of Scalia and Thomas.

On the other hand, Roe could be overturned on less sweeping grounds (which Forsythe considers a more realistic option) and the issue could be left up to individual states, as it was before 1973.  It would then be up to “a majority of states enact and enforce prohibitions on abortion, thereby exhibiting a national political culture that opposes all abortion,” which might eventually create the political climate in which legal abortion would eventually be considered a violation of the 14th Amendment.

What can we do now?

On the legal side, the states can enact (1) fetal homicide laws (the strongest possible legal protection of the unborn child today), (2) legislation to limit and fence in and reduce abortion, and (3) legislation to protect women’s health and ensure that women get full information about the six major medical risks to women from abortion. Political science professor Michael New’s series of statistical analyses attribute the 25% drop in abortions (from 1.6 million annually in 1992 to 1.2 million annually in 2006) to legislation of this kind. The current majority of the Court will likely uphold any regulation of abortion that makes medical sense, and there’s a lot that the states can and should do to protect women from the medical risks.

For private citizens, he has these suggestions:

  1. Become active voters. Vote in upcoming primaries, and vote in the upcoming state and federal general elections, including the Congressional mid-term elections in November 2010.
  2. Stay informed through reading and information that’s on the Web. See e.g., www.aul.org.
  3. Get involved with a pro-life organization in your state that is actively involved in lobbying on the life issues in your state capitol this Spring.
  4. Support AUL’s work in the courts and legislatures.
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