For years, pro-life advocates have been busy at the state level, enacting legislation that would significantly regulate or even forbid abortion. Of course, few if any of those laws have gone into effect. That’s because of what Justice Scalia once called the Supreme Court’s “ad hoc nullification machine.” That routinely leads to courts finding these laws unconstitutional under Roe v. Wade and Planned Parenthood v. Casey.
Abortion advocates have long lamented this activity, but for years have been complacent in relying on their bulwark in the Supreme Court. But, now that there is a genuine possibility that Roe/Casey will be overturned and states given more leeway to regulate abortion, abortion advocates are trying to play catch-up. And their chances don’t look great.
A recent bill introduced in West Virginia to much media fanfare is a good example. The bill would repeal all restrictions on abortion in current West Virginia law, which include the following: a total ban on all abortions after 20 weeks, a mandatory 24-hour waiting period, a ban on partial-birth abortions, a requirement that doctors provide medical care to babies born alive accidentally during an abortion, limits on public funding, and a ban on abortion pills prescribed without an in-person doctor visit.
That’s an extremely radical bill. In reality, however, it’s just political theater. The West Virginia legislature is dominated by Republicans (a two-to-one majority in their Senate and almost three-to one in the Assembly), and their Republican governor is publicly pro-life and has signed pro-life legislation. There’s no way that extreme bill will ever become law.
But it shows the desperation of abortion defenders who finally realize that they may actually have to make their case to the American people instead of nine unelected judges. And it highlights how radical their agenda is, compared with the interests of the American people.
The advocates for such bills want there to be no restrictions or legal barriers to abortion. That West Virginia bill is similar to other extreme abortion expansion bills passed in recent years in abortion stalwarts like New York, New Jersey, California, and Hawaii. And it’s basically the current law under Roe/Casey.
Americans are nowhere near as radical as that. A recent Knights of Columbus/Marist College poll shows that only 17% of Americans want abortion allowed at any time during pregnancy (which is the law under Roe/Casey), 12% say abortion should only be legal during the first six months of pregnancy, and 22% think it should be limited to the first three months. Another 49% say it should never be legal, or only permitted in rare circumstances. In other words, 83% of Americans say that abortion should be limited in ways that are not currently possible under Roe/Casey.
The result of this persistent moderation of the American people is that abortion will be much more restricted in our country if Roe/Casey are overruled. Only three states plus the District of Columbia have laws that would protect abortion for all nine months of pregnancy, like that West Virginia bill and Roe/Casey. Over a dozen more states protect pre-viability abortions either by statute or judicial ruling. Virtually every other state has either a pre-Roe restrictive law still on the books or has enacted restrictions in recent years like those on the books in West Virginia.
Abortion advocates have been complacent for many years, relying on their “ad hoc nullification machine” in the courts to hold back legislative regulations on abortion. But they have also been defeated convincingly in the battle for popular opinion. Wide majorities of Americans reject the radicalism of abortion without limits. And if Roe and Casey are overturned, there will be a dramatic shift in American law toward protecting preborn human lives.