It shouldn’t. The fact is, the pro-life movement has overlooked a crucial point in the effort to end abortion: If Roe v. Wade is going to be overturned, it must be carried out with the respect for law that was neglected in its initial creation. Due process must be followed, or the laws we would enact to protect life will be easily overturned once again.
True and lasting reform of abortion law in this country can come about in one of three ways:
Through legislation that challenges the constitutional interpretation made by the Supreme Court in 1973, leading to a new Supreme Court decision that effectively overrules Roe.
Through a constitutional amendment.
Through a law like HR 1094 — “The Sanctity of Life Act” — which would define life as beginning at conception and would remove Supreme Court and district court jurisdiction to review cases regarding the unborn or abortion. This bill, sponsored by Rep. Ron Paul last year (he sponsored a similar bill in 2005), would circumvent the process of a constitutional amendment and require only a majority vote in Congress. The issue would then pass to the states.
Operating within its Constitutional limitations, the Supreme Court should never be swayed by the protests and opinions of the public. It is not an elected body. If it oversteps its bounds by creating new laws or rights out of whole cloth, wouldn’t we be better off urging it to return to its Constitutional role than trying to exploit its improper activism for our own ends? Shouldn’t we want a court that does what it’s supposed to do as defined by the Constitution, rather than follow the whim of popular opinion, even if that opinion happens to be your own?
The unquestionably pro-life Justice Antonin Scalia addressed a similar concern in his opinion in Planned Parenthood v. Casey:
Pro-lifers in this country are rightfully desperate to end abortion, but in the process some have lost sight of the proper relationship between ends and means. The sense of urgency is natural, but we must proceed with caution if we do not wish to undermine the very work we are trying to accomplish.
One can’t help but recall the memorable exchange between St. Thomas More and the young William Roper in A Man for All Seasons:
William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I’d cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!
This is why the March for Life should end at the steps of the Capitol, not the Supreme Court: Abortion on demand is a law in this country — a bad law, to be sure, but one that must be addressed first through the legislative branch, not the judicial. And that will require a massive change in the hearts and minds of the American people.
Barring some great shift, this simply will not happen at the national level; our country is still too divided on abortion to make any progress on that front. A constitutional amendment outlawing abortion would not currently pass the ratification process, which requires a simple majority vote in both houses of Congress and a two-thirds majority passage by the 50 states.
Sensible pro-lifers should therefore adopt a healthy federalism as part of their political philosophy, recognizing that in order for the holocaust of the unborn in this country to end, the issue must be decided by the American people at the state level. Common sense recommends it; the Constitution demands it.