Proposal: The Fair Fight Initiative

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…)

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  1. The Supreme Court reviews acts of Congress for constitutionality, and this legislation would be struck down under Roe and Casey, which both maintain that a right to abortion is present in the Constitution. Roe and Casey are an abuse of the text of the Constitution, but they are the law as long as Kennedy is the fifth vote.

    As to the questions posed:
    1) I think federalism arguments are useful to pro-lifers, but it is often noted that one’s position on federalism is often strongly governed by the underlying issue. E.g. – (the 1964 Civil Rights Act was a violation of federalist principles which I support).

    2) I do not think there would be much chance of persuading Democrats to support such an initiative because they would say it is right-wing abortion extremism clothed in federalism;

    3) I am not sure whether it would help or hurt the pro-life movement – it would serve an educational purpose for people who don’t realize that overturning Roe would not make abortion illegal, but it is also very unlikely to happen. I am inclined to think it would not be very helpful.

  2. Justice Scalia was right when he said that the “sweet mystery of life” passage from PP v Casey “ate the rule of law.” With so many precedent land mines like those scattered about (Lawrence v Texas, Griswold v Connecticut, etc.), I don’t see how this could work. It’s not a bad idea, because you’ve correctly identified the misperceptions about Roe, but as a practical matter I think we (the citizenry in general) are too far along that line of reasoning.

    If, according to the Court, I get to define my meaning of existence, then I doubt I’ll be amenable to a states’ rights argument that could potentially chip away at my existential-defining rights…

  3. “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.”

    It has long been a hotly contested question among lawyers and judges as to how far Congress can go in stripping the Supreme Court, and the lower federal courts, of jurisdiction in particular cases. Even if the Supreme Court ruled that such jurisdiction stripping legislation was constitutional, something I doubt they would do, Roe would still remain the law of the land. The state courts would almost certainly still rule that Roe established a right, under the US Constitution, to an abortion. Now if the highest court in a state ruled otherwise, than that would effectively overrule Roe in that state, since no appeal would then be available to the US Supreme Court if that tribunal had previously ruled constitutional the jurisdiction stripping legislation.

  4. It’s an interesting idea. If it did, in fact, allow the states to pass restrictions on abortions, I would call it a big improvement for the pro-life side. Abortion would no longer be a “right”.

    And therefore, I think the chances are slim to none that Democrats would support it.

  5. Donald,

    I think that many state courts would be fine with legislative restrictions on abortion if it was established that the Supreme Court did not have jurisdiction in this area. It would be analogous to same-sex marriage; different courts in different states would have different interpretations.

    At the same time, the Court could not uphold Congressional legislation depriving the Court of authority in this area without overturning Roe, Casey, Carhart, etc. which all assumed that abortion was a constitutional right. The federalism/legislative deference arguments were rejected in Roe and Casey; the Carhart majority must have believed the Court had jurisdiction in this area over Congress because the Partial-Birth Abortion ban it reviewed was passed by Congress. I think the proposed legislation would require Roe/Casey/Carhart to be overturned.

  6. Update – Carhart would not need to be overturned, but the position of at least one Justice (either one of the dissenters or Kennedy) would need to change to uphold jurisdiction stripping.

  7. The problem John Henry is that any legislative action could not be retrospective in nature. The US Supreme Court clearly did not have its jurisidction restricted when it decided Roe and, effectively, amended the constitution to add abortion as a right. That such an action was merely “a raw exercise in judicial power” as noted by Justice White, and not justified by the text of the Constitution, does not help the fact that the decision was made. I am afraid that almost all State Supreme Courts would still adhere to Roe on the basis that it was the last word on whether abortion restrictions are constitutional , as modified by the progeny of Roe such as Casey, by the US Supreme Court while the US Supreme Court had jurisdiction.

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