Building a Culture of Life without Overturning Roe?

Evangelical Catholicism has a post asking the following question:

if our legal system, that is based on the common law model that relies heavily on precedence, has ratified the “right to privacy” as constitutional twice (Roe v. Wade and Planned Parenthood v. Casey), then what are our realistic solutions to overturn abortion rights in this legal framework? In other words, if an abortion case were to be heard by the Supreme court and a majority were to ignore the preceding decisions on the matter and overturn Roe v. Wade, how can the majority of justices justify their decision? Or instead of overturning Roe v. Wade, how could they (given the preceding decisions) push the decision on state courts?

My first thought is that there is no possibility for creating a legal regime that protects fetal life unless Roe v. Wade and Planned Parenthood v. Casey are overturned.  The Supreme Court’s holdings in those cases effectively preclude legal restrictions on almost all abortions.  So, the prolife movement must necessarily be committed to overturning those decisions, either by constitutional amendment or by having the Supreme Court reverse itself in some future decision – the principle of stare decisis notwithstanding.  (There is nothing improper or even unusual about the Supreme Court reversing istelf and overturning its own prior decision).

But on further reflection, although I certainly think that the prolife movement should seek to overturn Roe v. Wade and Planned Parenthood v. Casey, there is a great deal more room to make progress even without constitutional change. 

The trick is to understand the goal of the prolife movement  to be broader than merely prohibiting abortion, but includes changing laws and institutions that discourage women from carrying unintended pregnancies to term.  Unlike prohibiting abortion, there aren’t any consitutional impediments these changes. 

It is clear, for example, that some women seek abortions because they fear that they will face discrimination from employers because of their pregnancy, and others because they fear that they will be unable to combine motherhood and career.  There are changes to existing legal doctrine, as well as proposed new laws, that address these concerns.  (See this pamphlet from Femminists for Life for more info).   

Some prolifers don’t like to talk about anything other than prohibiting abortion.  They have fallen victim to  a false dilemma:  either we work to prohibit abortion or we work to encourage women to chose not have abortions by changing laws and institutions to make carrying an unintended prgnancy to term less burdensome for women.  But, of course, there is no reason why we can’t do both. 

Another reason for the reluctance of many prolifers to expand the prolife agenda to include, for example, paid family leave is that doing so will put the prolife movement into conflict with the Republican party and the conservative movement.  The contingencies of partisan politics has caused the prolife movement to unduely narrow its agenda.


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