It’s long been the mantra in right to life circles that Roe needs to be reversed.  I’ve long thought this was a bad idea, and finally the feared legislation is coming to pass.  The permissive abortion legislation in New York, and the attempt to change abortion statutes in Virginia show the danger of reversing Roe.  If Roe is reversed in a vacuum, as is the general school of thought in the pro life community, the consequences will be to let states decide whether and how to regulate abortion up to the partial birth abortion ban.

Doubtless this would cause a decline in the absolute incidence of abortion as most southern and plains states would enact some degree of restriction on abortion.  However, most, if not all, New England and Pacific coast states would adopt a posture of abortion on demand until partial birth abortion similar to what New York passed.   The end result would be a patchwork of laws and abortion being available to anyone who had the means to travel to locations leaving abortion available.  The sole check on abortion would be logistical, not legal.

An alternative theory is to embrace Roe to destroy Roe.  On the surface this sounds like crazy talk.  Why would the pro life movement want to adopt the logic of the Roe v Wade decision?  Several post Roe strategic benefits flow from the Supreme Court using Roe’s logic to end Roe. 

Roe gives the blueprint for its demise.  In the decision, the Court tracked the history of laws touching on abortion, created a right to privacy, and implemented standards on when abortion could and could not be regulated in light of the right to privacy using the history of the laws to find that it is not a long held prohibition.  Should a new right for the unborn child be found to exist, a conflict of rights exists and the Court must resolve the conflict.  This would be found that the unborn has a right to life.  This right to life outweighs the mother’s right to privacy. 

This conflict of rights cannot be found to be absolute as instances where an abortion as the unintended consequence of saving the mother’s life is morally required in certain circumstances (such as in an entopic pregnancy.) In order to close this loophole as tight as possible, a second conflict of rights would need to be resolved.  When death to one party is medically likely the mother’s right to life allows her to choose to end the pregnancy.  Note the verbiage – end the pregnancy.  This does not automatically permit abortion.  If the baby is viable, then the baby’s right to life requires a premature delivery and attempts to save the baby’s life.  This second conflict of rights is necessary to prevent states from incorporating and expanding the current health of the mother standard that is currently in place.

Setting up a conflict of rights and resolving as set forth above changes the legal structure of any future legislative analysis.  Strict scrutiny would still apply to laws that directly bear on abortion.  However, rather than the current restriction on abortions need to survive strict scrutiny the legal framework would be any laws permissive of abortion must survive a strict scrutiny analysis.  Any collateral legislation would still be under a rational relationship analysis.  However, the collateral legislation could be argued to be violative of the baby’s right to life and much of the legal battles that follow will be a matter of framing the arguments, similar to how HB2 was killed.

This leads to the question of how does the baby’s right to life become established?  The same way that the mother’s right to privacy was established.  Much of the text of Roe could be incorporated.  Much of Roe section VI line items 1-5 can be incorporated into an argument that the law has long suggested that the unborn had a right to life, at least as of viability.  After the historical context is argued framing the issue in a pro life light the right could be extended to the unborn baby in a couple of different ways.

One way is to follow the path set forth in the Harvard Law Journal.  The Journal article argues that in the language of the time of the Fourteenth Amendment the word person extended to the unborn.  This argument has historical support, and, unlike Roe, would create the right whole cloth.  However, this argument also has risks in a post Roe era as the text of the Fourteenth Amendment section V specifically grants authority to Congress to, “enforce, by appropriate legislation, the provisions of this article.”  With Congress specifically empowered to enforce the meaning of the Amendment this gives Congress the authority to legislate limits to the ruling in the post Roe era.

A second way for the Court to extend the right to life to the unborn is to make a finding that a state has created rights for the unborn, and the court recognizes the grant of rights to the unborn as Constitutionally permissible.  With the Constitution permitting the granting of rights to the unborn the Court then holds that right to life as set forth in law for the born extends to the unborn.  This requires a state to specifically establish a right for the unborn that is challenged and is decided on the state level and then appealed to the Supreme Court.  An argument that the law is statute is a valid exercise of state power, and that the only way to deem the statute an improper exercise of state power is that Roe’s privacy rights prevent such an action needs to be raised at the district court level and preserved at the appellate and state Supreme Court level.  Then, when the state Supreme Court has ruled, petition to the United States Supreme Court is filed with a specific argument that the unborn has a right to life inviting a resolution to the conflict of rights as argued above.

How would this look in terms of a decision?  The Supreme Court would pattern the decision after Roe.  When it came to the guidance going forth the Court would state what the position of Roe is:

 (a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life[410 U.S. 113, 165]   may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

then note that sections ‘a’ and ‘b’ are stricken as unconstitional, and that section ‘c’ is altered to state the state must proscribe abortion except where it is necessary, in appropriate medical judgment, for the preservation of the physical life of the mother, and in such instances all practicable measures to save both lives must be taken.  With such a ruling the legal battles will continue, but the battle will be do the various state’s laws attempting to stretch the boundaries of “life of the mother” survive a strict scrutiny analysis.

What would the effect of such a ruling have on abortion?  This effect would be in stark contrast to simply overruling Roe.  The three charts at the end of this writing show the abortion rate per 1000 pregnancies historically since 1970, since Roe, and since the partial birth abortion ban.  After Roe, the abortion rate spiked and has unsteadily trended back to baseline.  However, the time period right after the partial birth abortion ban saw a temporary flattening of the trend to baseline until a later resumption occurred.  This suggests that the partial birth abortion ban had essentially nil impact on the incidence of abortion, but energized the pro abortion movement causing a temporary uptick in abortions.

Simply reversing Roe and allowing the states to set their own policy would lead to a drop in abortion overall, but a spike in abortions in areas favorable to abortion as the pro abortion forces would be energized similar to after the partial birth abortion ban.  Worse, the access to abortion would be limited by logistical constraints rather than legal constraints.  The battle for the hearts and minds would need to continue, but it would be a battle in hostile territory where the likelihood of state intervention to shut down the right to life message would ramp up.

Creating a new right for the unborn would lead to a much higher reduction in abortion incidence.  A loophole would exist to allow for the death of the baby as an unintended consequence, and doubtless states favorable to abortion would push the boundaries of what the “life of the mother” entailed.  This would lead to an abortion rate of very low, but not zero as some abortions would be ongoing under the guise of the life of the mother.  The legal battles to define this term would continue, and the on the ground battle would still need to try for the hearts and mind of the population. 

Doubtless others smarter than I could improve on the above plan, but I offer this to you as food for thought on how to best proceed going forward.  The option between overturning Roe and establishing a right to life for the child and modifying Roe as described herein are likely mutually exclusive.  Now that New York and Virginia have shown the start reality of the post Roe world, it’s time for the right to life movement to go back and reassess.  Do we really want to see Roe reversed and New York style legislation flourish?