Whatever the Supreme Court decides about the status of Roe v. Wade, it will be a train wreck. If, after all the hype and uproar, Roe’s “viability test” is affirmed, pro-life advocates will feel hugely betrayed. Conversely, if the Court were to follow anything like Justice Blackmun’s “personhood” test and uphold a fetus’ right to life under the 14th Amendment, pro-choice advocates would be apoplectic! Don’t hold your breath on that one. Although both criminal and civil cases since Roe have established personhood apart from the 14th Amendment, it would be shocking if abortion flipped from a supposed constitutional right to a total constitutional ban.
If the Court predictably takes the middle ground, overturning the presumed constitutionality of Roe’s “viability test” and leaving the legality of abortion to be determined on a state-by-state basis, there will be no end to the political rancor and consequent litigation. Already, there is talk of states removing all restrictions, legalizing abortion up to the moment before birth. Rather than settling matters, the Court will have just stirred up a hornet’s nest.
Of course, Congress could always preempt all the local legislation by enacting something like Roe into law, but that only raises the prospect of federal abortion statutes swinging back and forth every time Congress changes hands. So, how about a constitutional amendment to settle the question once and for all? If only. In a nation sharply divided on abortion, the odds of that happening are about as long as Rich Strike winning the Kentucky Derby!
A patchwork of wildly diverse state abortion laws is not just legally problematic but fraught with practical challenges. We’ve seen it before with divorce and drug laws, where “legal tourists” go forum shopping in search of more favorable laws. State lines can disappear as quickly as a fetus. Not to mention the possibility of self-administered abortifacients becoming as big a black-market business as bootlegging during Prohibition. (Despite the scaremongering, we’re too much of a therapeutic society for coat hangers!)
In a myriad of ways, the law of unintended consequences has already come into play. Heaven only knows what effect this case might have on mid-term elections. Or, coming full circle, what potential impact it might have on the future makeup of the Court itself…or, ironically, even crucial decisions in abortion cases yet to come. This is no time for premature celebrations.
So, what does one do in the middle of such a train wreck? There’s no easy answer, but do you remember the antiwar slogan: “Suppose they gave a war, and no one came?” Make that: “Suppose abortion was completely legal, and no one had one.” I’m not suggesting that abortion be legalized, but if, one by one, every mother, father, and voter came to accept that life in the womb, at whatever stage, is not a legal issue but a sacred trust, abortion would be a non-issue. Perhaps, then, it’s time to focus our energy on convincing the unconvinced of that bedrock truth.
Given the great gulf in today’s moral and cultural outlook, such a goal may seem Pollyannish. Yet, there was a time when African Americans were not considered persons, and the same women who today deny the personhood of their own offspring had, themselves, no legal protection. Over time, as witness even immoral causes, the most entrenched social attitudes can be radically transformed. At the intersection of law and morality, change hearts and minds, and all else will follow.
F. LaGard Smith is a retired law school professor (principally at Pepperdine University), and is the author of some 35 books, touching on law, faith, and social issues. He is the compiler and narrator of The Daily Bible (the NIV and NLT arranged in chronological order).