When the Supreme Court overturns Roe v. Wade and Doe v. Bolton, the American people will once again have the right to enact substantive legal protection for unborn children. In anticipation, many states have already adopted protective laws, although federal judges have blocked most of them on grounds of inconsistency with the Roe and Doe rulings. Thus positive action by the Supreme Court is crucial to enable the democratic process to move forward. Which post-Roe statutes should have priority is the topic of on-going discussion in the pro-life community.

Staying with the States

Prospects for passing a national pro-life law are not encouraging in the short term, as this would require, in addition to maintaining control in the Senate, restoration of a conservative majority in the U.S. House of Representatives—an uncertainty at this stage. This writer believes that when the burden of Roe and Doe is lifted from the body politic, we should continue to concentrate primarily on state legislation, at least for the first year. State affiliates of the National Right to Life Committee and Americans United for Life have been highly effective in promoting passage of hundreds of pro-life state laws in recent decades, and the trend has strengthened since the 2016 elections.

Which Laws Deserve Priority?

State-level victories have come as a result of pro-life citizens and organizations initially interacting with candidates and then following up with elected legislators and governors. During the first decades after Roe, most pro-life laws addressed what might be called procedural matters, such as waiting periods and parental involvement, and second-victim situations in which unborn children are injured or killed during an attack on their mother. Here I want to concentrate on what I call the “cruelest cases.” The following analysis is based on figures provided by the Guttmacher Institute, which, despite its affiliation with pro-abortion institutions, consistently produces factually accurate reports.

Cruelest Case #1: Late-term abortions. Twenty states have enacted laws banning abortion after 20 weeks of gestation—22 weeks after last menstrual period (LMP)—because the child is then viable and capable of suffering excruciating pain during the procedure.[1] Most of these statutes have not been challenged in court and are in effect. A handful of other states have set the bar even earlier—at 18 or 20 weeks LMP—but these laws have been challenged in court and are not in effect. In general, federal courts have been willing to accept that abortion after 22 weeks LMP (20 weeks post-fertilization) is not protected by the Roe decision, that is, unless other factors are present, such as threats to the mother’s life or health. However, the Doe decision’s infinitely elastic definition of “health” (including mental health) has been used to sanction abortion for virtually any reason, even late in pregnancy.

Cruelest Case #2: Dismemberment Abortions. Eleven states have adopted laws banning dismemberment abortions, which are usually performed in the second trimester.[2] The level of pain unborn children feel as their living bodies are torn apart must rank with the worst of tortures committed by terrorist organizations and totalitarian regimes. Yet last June, the Court declined to hear a case challenging an Alabama law prohibiting dismemberment abortions. (In his concurring opinion in Harris v. West Alabama Women’s Center, Justice Thomas did acknowledge the need for the Court to hear an abortion case, but wrote that Harris was not the right one.) Surveys repeatedly show public majorities for banning all abortions in the second and third trimesters unless continuation of the pregnancy would threaten the mother’s life or endanger a major bodily organ or function. As of November 2019, state bans on dismemberment abortions were in effect in West Virginia, Oklahoma, Mississippi, and Ohio (partially).

Cruelest Case #3: Disability Abortions. Banning abortion on grounds of disability is in line with other laws aimed at protecting individuals against discrimination on the basis of race, religion, sex, or disability. Ten states have enacted some form of restriction on abortion based on fetal disability. However, most of these laws are not in effect due to legal challenges. As Justice Thomas wrote in May 2019—again, in a concurring opinion—when the Court refused to consider a case that included a ban on disability abortions (Indiana Department of Health v. Planned Parenthood), “this law and other laws like it promote a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.” The refusal to protect an unborn baby diagnosed with Down’s syndrome is in effect an endorsement of eugenics and a blatant act of discrimination hostile to our national commitment to equality under law.

Difficult Issues for Pro-life Legislators and Candidates

Heartbeat laws: Successfully moving the point of legal protection back to 6 weeks (8 in some states), as provided in “heartbeat” laws, will likely require more time and educational efforts to broaden public understanding and support. Although 10 states had adopted heartbeat laws as of November 2019, due to legal challenges none of them has yet to take effect. Opponents typically point out that women are usually unaware of their pregnancy before six weeks LMP, and that enactment of a heartbeat law would be in practice a total ban on abortion. Exceptions for threats to the mother’s life or physical health could be added to heartbeat bills, which would make them more acceptable to a broader segment of the public.

Should the law ban abortion in the case of rape? State laws, as well as the Hyde Amendment and other federal laws, say no. Strong compassion for the victim and a natural concern for her well-being usually outweigh in many people’s minds the argument that it is wrong to create a second victim through abortion. A bill banning abortion in cases of rape would not pass in most states.  We should strongly support legislation to provide the support needed by a rape victim to help her deal with the trauma, including but not limited to financial support for mother and child. And we can hope that such support will help her decide to give her child the gift of a lifetime.

What about incest? Although typically mentioned together with rape, incest is not the same thing and should not be treated as such by the law. If a woman is coerced into sexual relations, or if she is a minor, she is a rape victim. In any other situation, the incentive to abort is eugenic, the fear of giving birth to a disabled child. But killing the handicapped should never be authorized by law.

Concluding Thoughts

We know that if we want to see legal protection extended to unborn children, we need pro-life judges on the Supreme Court and in all other federal courts. Citizens cannot vote directly for federal judges, but we can vote for a presidential candidate who will nominate judges who aren’t averse to protecting the unborn. And, since nominees must be confirmed by the Senate, we must give equal priority to working to elect pro-life senators. The fact that Senate races are determined at the state level, not nationally, means we can have considerable impact on who will be elected. If we do not have both a pro-life president and a pro-life Senate majority, we will have little influence, even indirectly, on who will sit on the Supreme Court and in other federal courts. And if we do not have pro-life majorities in these courts, we will see little improvement in legal protection for unborn children.

I have argued here that we should prioritize state-level legislation once Roe and Doe are history, which is why we must also work hard to elect pro-life governors and state legislators. They have created most of the life-protecting laws that exist in America, and they continue to do so in the face of anti-life rulings by federal judges.

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[1] Alabama, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, West Virginia, and Wisconsin. Source: The Guttmacher Institute (guttmacher.org, accessed November 13, 2019).

[2] Alabama, Arkansas, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Ohio, Oklahoma, Texas, West Virginia: Source: The Guttmacher Institute (guttmacher.org, accessed November 13, 2019).