As is observed every time we discuss Supreme Court appointments, there is very little pro-life progress possible under the Roe v. Wade regime, because anything which is seen as unduly obstructing a woman’s access to terminate her pregnancy (and thus use her constitutional right to “privacy”) is struck down by the courts. And yet, while abortion on demand is decidedly not popular according to the polls, Roe v. Wade mysteriously is. A solid majority of people way they want to keep Roe v. Wade, despite the fact that a solid majority would also be in favor of legal restrictions on abortion well in excess of what Roe allows.
It seems to me that one of the most difficult tasks for the pro-life movement is thus not to convince the population that abortion should be seriously restricted and reduced (banning would right now be a very hard sell, but it would seem that a great deal of progress in that direction would be possible) but rather to convince citizens that Roe is actually an obstacle to this. Thus, “the fair fight initiative”. The purpose would be (and the lawyers on here can inform me if this is indeed a legal possibility) for Congress to pass a law which would officially remove from the federal government (legislature and courts) any ability to restrict or allow abortion.
All regulatory authority would be granted to the states to use as they saw fit.
Roe would effectively be overturned by this in that it would be stated that the federal courts had no authority to deal with issues surrounding abortion. However, if well presented this could potentially gain political ground in a way that seeking to appoint anti-Roe justices does not, in that the debate about the bill would necessarily bring out the facts about what a non-Roe US would look like. There could even be a timeframe set up in the bill such that its provisions would go into effect six to twelve months after passage — thus allowing states the time to set up their own regulations before everything came down to them.
The bill would open with a statement that this action was being taken because: a) The constitution does not speak clearly to the issue of abortion. b) The is not a national consensus on the moral and legal status of human individuals prior to birth. c) The federal status quo has resulted in division and uncertainty while actively preventing the citizens from making their own voices heard.
Would such a move actually represent an improvement for the pro-life movement — even though the bill itself would ban no abortions?
Would an initiative like this help to reshape the abortion debate, and allow pro-lifers to make better use of the appeal of the “right to life” argument?
Would there be any chance of getting enough Democrats to support such an initiative?
Would it undermine the pro-life movement too much to put in a strictly Federalist short term goal such as this? (I think I know what the Kmiec answer would be…)