Abortion Challenge Likely Headed to Supreme Court

Alabama’s Governor signed into law a bill to ban most abortions in the state.  The law is intended as a direct challenge to the Supreme Court’s 1973 Roe v. Wade decision extending the fundamental right to privacy under the 14th Amendment Due Process clause to include a right to abortion.  Alabama’s law does not take effect for 6 months but, already, at least one Alabama doctor has vowed to keep performing abortions when the law goes into effect. 

Alabama joins other states that have recently passed restrictions on abortion.  Heartbeat bills were passed in Georgia, Kentucky, Mississippi, and Ohio.  In addition, Missouri’s Governor is expected to sign a heartbeat bill passed by the legislature this past week. 

Meanwhile, observers reading the tea leaves in a different kind of case this past week said liberal Justice Breyer was sounding the alarm about the Supreme Court overturning Roe v. Wade.  The case had to do with where states can be sued but the opinion overruled a 40-year-old precedent in the process.  Breyer’s dissent concluded: “Today’s decision can only cause one to wonder which cases the Court will overrule next.”  Overturning precedent is rare because of the judicial doctrine of ‘stare decisis’ which, in Latin, means ‘to stand by things decided’.

Will the Supreme Court overturn Roe v. Wade and uphold Alabama’s abortion ban?  The appointments of Justices Kavanaugh and Gorsuch give pro-lifers hope.  But it’s dangerous to make predictions, especially about the future.  There were five votes on the Supreme Court to overturn Roe in 1992, but it didn’t happen.  Instead, Justice Kennedy switched his vote and the Casey case has been used numerous times since to knock down state restrictions as ‘undue burdens’ on the right to abortion.  Some say Chief Justice John Roberts is in the role of swing justice today and point out that he has never voted to strike down a state abortion restriction. 

So it’s anybody’s guess what will happen if the issue does head back to the Supreme Court.  The Court could uphold Roe, knock it down - sending the entire issue back to the states - or modify it as it did in the Casey case.   That we are still fighting about abortion 40 years after Roe became the law of the land is testimony to the passion and endless inventiveness of pro-life activists who have been holding annual marches, praying outside of Planned Parenthood clinics, and producing a veritable blizzard of state and federal legislation - pain capable bills, dismemberment bills, heartbeat bills, and 44 attempts in the U.S. House at last count to stop infanticide.  Other activists on the right would do well to study their methods and bring them to bear on other policy issues.  Perhaps most importantly, pro-lifers did not quit in the face of long odds.  They kept fighting.  They’re an inspiration to anyone fighting the Left on other issues.