Pro-life laws take aim at Roe v. Wade

MARY REICHARD, HOST: It’s Thursday the 23rd of May, 2019. Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. First up: the bid to overturn Roe v. Wade.

Lawmakers in pro-life states are rapidly passing bills designed to protect unborn babies at the earliest possible point in their development. Georgia just approved a law protecting babies as early as eight weeks. That’s about when doctors can detect a fetal heartbeat. The Missouri legislature passed a similar law. It’s awaiting the governor’s signature. And Alabama in theory became the safest place for an unborn baby last week when it outlawed abortion at any stage of pregnancy.

REICHARD: Yes, in theory. While these bills are designed to protect unborn babies, there’s another design:  and that’s to get the right to protect them. What they seek to do is overturn the 1973 Supreme Court decision that justified abortion under an interpretation of the Fourth Amendment.

Joining us now to talk about this strategy is Clarke Forsythe. He’s senior counsel for Americans United for Life.

Good morning, Clarke.

FORSYTHE: Good morning. Thanks for having me.

REICHARD: Let’s start with something I think confuses people. And that’s the conflict between state law and federal law. As we both know when there’s a conflict between them and both are constitutional, federal law prevails. But lawmakers in some states are quite bold saying their ultimate goal is to take down Roe v. Wade. So if a state law limits the time and circumstance of an abortion, how is that valid if federal law permits it under those same terms?

FORSYTHE: Well, the purpose of these state laws—in many cases—is to create a federal case taken into federal court, which could end up in the Supreme Court and pose the possibility of a test case. But there are, as you know, many cases in the courts right now involving abortion and the court will have, actually, many opportunities in 2019, 2020, 2021 to revisit the abortion issue in many laws and many variations.

REICHARD: Well as you know there’s been a lot of talk lately that abortion would be completely illegal if Roe v Wade were overturned at the Supreme Court level. True or not true?

FORSYTHE: That’s incorrect. The Supreme Court can’t make abortion illegal. The effect of the Supreme Court overturning Roe would be to return the issue to the 50 states. Now, it’s possible that Congress could try to act. I would expect there will be bills introduced in Congress to legalize it nationwide and there will be bills introduced to prohibit it nationwide after Roe v Wade is overturned.

REICHARD: Those in favor of protecting preborn children are more confident now more than in the past now that the Supreme Court has a conservative majority. Yet the two newest justices appointed by President Trump, Neil Gorsuch and Brett Kavanaugh, either haven’t been tested on this issue or said things during  confirmation hearing that could lead us to wonder where they stand. What do you think?

FORSYTHE: There are four cases before the Court now, four abortion cases. Two from Indiana, one from Alabama, and a hospital complications law from Louisiana. So the Court has the opportunity right now and we have seen Justice Thomas earlier in December of 2018, joined by Justice Alito and Gorsuch say we shouldn’t punt on these abortion issues. 

We then saw Justice Kavanaugh write separately on his own saying that there should be no stay of the hospital complications law in Louisiana. It was good to see all of those. And it leads me to believe that Thomas and Gorsuch and Alito and Kavanaugh aren’t shy of addressing the issue but, as some speculate, maybe Chief Justice Roberts is kind of managing which cases the court takes as many have speculated since Justice Kennedy’s retirement.

REICHARD: So we’re talking about this strategy of protecting the unborn, state by state, incrementally, and finally then at the Supreme Court in some ways. Are there downsides to this strategy? What if pro-life advocates lose at the Supreme Court? Doesn’t this pose a risk of a big set back?

FORSYTHE: Well, I think there is certainly a risk, but I think there is less of a risk that the current so-called conservative majority of five might take an abortion case to strike down a law as they did in 1992 in Planned Parenthood v Casey. So, I think the risk is more that the court will simply not hear a case, decline to hear a case, refuse to take up an appeal rather than actually take an abortion case and strike down the law to reaffirm Roe. There’s kind of an urban legend out there that states can force the court to hear the issue or force the court to take up a case. But, in fact, justices have absolute discretion as to what cases they take, what issues they hear, on what timeframe, whether they ever hear certain legal issues.

So we’ll have to watch every single case and see what they’re interested in hearing, see what cases they decide to hear and which cases they punt on.

REICHARD: Clarke Forsythe is Senior Counsel for Americans United for Life. Thank you so much for joining us today.

FORSYTHE: Thank you, Mary.

(AP Photo/Jose Luis Magana, File) In this Friday, Jan. 18, 2019, file photo, anti-abortion activists protest outside of the U.S. Supreme Court, during the March for Life in Washington. 

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