Why Abortion Bans May Not Be the Answer Now

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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.

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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.

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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 states.

To put it another way, the problem with the pro-abortion justices is not a defect in the intellect but a defect in the will.

As for the "demonstrating the radical nature of current abortion jurisprudence," nothing has done that more clearly than the Nebraska partial-birth abortion case in 2000; and hopefully the new case that the court agreed to hear on Feb. 21, Gonzales v. Carhart, involving the federal partial-birth abortion law, will amplify that public education.

Q: Has pro-life legislation actually saved lives -- or are the various, limited laws that have been passed by Congress and the states more symbolic?

Forsythe: Incremental, prudential legislation definitely saves lives.

Michael New's studies, published by the Heritage Foundation, provide specific evidence that the drop of 17% to 19% in abortions during the 1990s was largely attributable to state legislation establishing fences around the abortion license. As restricted as it has been by judicial obstacles, pro-life legislation has achieved both those goals and more.

Within the very real and harsh and unconstitutional constraints imposed by the Supreme Court, pro-life laws have protected important principles to the extent possible, reduced abortions, kept the issue alive in the states, kept pro-life Americans energized and mobilized in the political and legislative arenas, recorded real votes of legislators on real bills, and demonstrated that the Court has made a mess of the issue, to say the least.

We have seen significant reductions in the number of abortions since the high point of 1.6 million in the early 1990s.

Q: Do you think that the presence of five Catholics on the Supreme Court will change the landscape of the abortion battle?

Forsythe: Maybe, but Justice Brennan was a Catholic and he gave us both a constitutional right to contraception by minors and a constitutional right to abortion.

Obviously, being Catholic doesn't guarantee that a justice will be competent or prudent in expounding the principles of the American constitution.

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Whether we're looking for a brain surgeon, a dentist or a judge, the first question we should ask is whether they are competent, not whether they have a certain religious label.

As jurists expounding American constitutional principles, Catholic justices will base their legal judgments on principles based in the text and history of the U.S. Constitution, because that's what the American people ratified and preserved.

As Princeton professor Robert George has said, "The questions of whether to vest courts with the power of constitutional review at all, and, if so, what the scope of that power should be, are in important ways underdetermined by reason. As such, [they] are matters to be resolved prudently by the type of authoritative choice among morally acceptable options -- what Aquinas called 'determinatio' and distinguished from matters that can be resolved 'by a process akin to deduction; from the natural law itself.'"

Q: Given the current state of the Supreme Court on the question of abortion, would it be more prudent to shift pro-life resources into life-care centers and other such initiatives that directly aid women in crisis pregnancies and help foster a "culture of life"?

Forsythe: No. It's not either/or. Crisis pregnancy centers save lives -- but so does policy. We must have both.

For example, New York Attorney General Eliot Spitzer has tried to use law to shut down CPCs. We must have the legal and policy work to protect CPCs and build fences around the abortion license.

Public policy and direct services to women considering abortion are crucial elements in a comprehensive cultural, educational, political and legal strategy.

All those aspects contribute to the abortion problem, and all have to be addressed with creative solutions.

Q: What sorts of changes are needed before federal courts will be more hospitable to abortion regulations and restrictions?

Forsythe: We need to stop judicial activism. We need judges who will faithfully interpret the law instead of devising their own social policy.

It's a legal, political and cultural problem within a mass democracy where political power is widely diffused by virtue of our constitutional system, our federal system, and the separation of powers.

Since Roe, and perhaps before, the judicial class -- and the legal academy, which produces judges -- have been among the elements of American society most hostile to the humanity of the unborn child. Most legal progress over the past 30 years has come through legislatures, not the judiciary.

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State and federal judges have to be changed. More pro-life public officials -- who appoint judges -- need to be elected to office.

Public opinion needs to be strengthened in respecting fetal life and realizing the negative impact of abortion on women. Again, it's not either/or. Every effort has to be done to move the entire democratic society.