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Why Abortion Bans May Not Be the Answer Now

Clarke Forsythe on Judicial Strategies

CHICAGO, MARCH 15, 2006 (Zenit) - A pro-life legal expert who has long battled abortion is warning against sweeping bans prematurely.

In fact, Clarke Forsythe believes such bans even might be counterproductive in prudently pursuing the pro-life agenda.

Forsythe is an attorney, director of the Project in Law & Bioethics at Americans United for Life and co-author of "The Tragic Failure of Roe v. Wade: Why Abortion Should be Returned to the States," in the fall 2005 issue of Texas Review of Law & Politics.

The evangelical Christian shared with us how he thinks a step-by-step strategy and incremental legislation will save the most unborn children now -- and pave the way for an eventual overturning of Roe v. Wade.

Q: Should pro-life political efforts focus on piecemeal legislation or sweeping bans such as the one in South Dakota? What sorts of laws can withstand constitutional scrutiny in the current landscape?

Forsythe: Over the past 33 years, an incremental, step-by-step strategy has proven to be the most effective.

Despite repeated attempts, sweeping bans haven't worked and can be counterproductive. Given the pro-abortion majority on the Supreme Court, abortion prohibitions before 2009 are premature.

An incremental strategy has been most effective because it simply recognizes that that's how the American Framers made the legal and political system. The constitutional structure of federalism, separation of powers, and checks and balances means that change only comes incrementally.

The Supreme Court is still dominated by a majority of at least five pro-Roe justices: Kennedy, Breyer, Ginsburg, Stevens and Souter.

We know that only two -- Scalia and Thomas -- have publicly stated that Roe should be overturned, though even Scalia and Thomas are of the view that the abortion issue is a state matter because the Constitution is silent on the issue.

We don't know about Roberts or Alito. And we don't know if President Bush will have another nomination before the 2008 elections.

Given those obstacles and uncertainties, pro-life legislative efforts should focus on legislation that can put fences around Roe, reduce abortions, protect unborn children, protect women from the risks of abortion, encourage alternatives, and educate the public.

Essentially, legislative strategy should ask three questions: What will effectively limit the number of abortions? What will raise public consciousness? What will help reverse Roe?

Given current obstacles, state or federal abortion prohibitions at any point before the 2008 elections will be premature.

A prohibition in the near future -- given the current composition of the court -- will have a virtually certain outcome: It will never go into effect, it will be struck down by the lower federal district courts, which will be affirmed on appeal, the Supreme Court will deny review, and the state will have to pay tens or hundreds of thousands of dollars in attorney fees to the abortion clinics' attorneys.

There are several types of laws that can be enforced and make a positive difference now -- such as parental notice, informed consent and clinic regulations -- and states should focus on those types of laws, until the legal and political obstacles change.

In addition, fetal homicide, or unborn-victims-of-violence, laws, like the Lacey Peterson law in California, can protect the unborn child from (the moment of )conception; they are enforced in 33 states today, and many of those protect the child from the time of conception.

Q: Shouldn't anti-abortion statutes be repeatedly pursued and defended in the courts to keep the pressure on judges and win the public relations battle by demonstrating the radical nature of current abortion jurisprudence?

Forsythe: The right kind of abortion legislation should be pursued -- legislation that seeks to achieve one of the goals outlined above and can actually be enforced and make a positive impact.

Unless there is some compelling reason related to the three questions outlined above, legislation that has no chance of being upheld and no chance of going into effect should be discouraged at this time. The simple fact is that time and resources are limited.

The notion that the court can be "forced" to re-examine Roe in a particular case is a myth.

It is also a persistent myth that the justices simply haven't been "shown the right facts" and that "if they only saw the facts of fetal development, they'd see the light." In the 2000 Stenberg v. Carhart case, the justices were presented with graphic testimony about fetal development and about the impact of partial birth abortion on the unborn child, and the majority proceeded to strike down the partial-birth abortion laws of 30 ...

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