On March 6, South Dakota governor Mike Rounds signed into law the Women’s Health and Human Life Protection Act, which effectively banned abortion in that state. You would think that pro-lifers across America would be cheering this legislation, which not only reflects an extraordinarily strong pro-life commitment on the part of South Dakotans but is an affirmation of the democratic process—a democratic process that Roe v. Wade; and its Supreme Court progeny have thwarted with respect to abortion issues for more than 30 years.

Surprisingly, however, there have been precious few cheers for the new law from the pro-life camp. Indeed, many pro-lifers have hopped aboard the abortion-activist bandwagon in dismissing or even condemning the South Dakota legislation. Their argument is that, since only four out of the nine Supreme Court justices can conceivably be counted on to oppose Roe (Antonin Scalia, Clarence Thomas, the new Chief Justice John Roberts, and the recently confirmed Samuel Alito), the South Dakota abortion ban is almost certain to be struck down, and Roe, with its mandate of nearly unrestricted abortions throughout America, staunchly reaffirmed. “It’s just not the right time for this legislation”—that’s the mantra of many pro-lifers, who worry that yet another affirmation of Roe could hamper their efforts to chip away incrementally at Roe’s broad sweep.

The South Dakota law's chance of passing muster with the Supreme Court is not, however, the standard by which it should be judged, supported and defended. Even if the high court does strike down the South Dakota law, that does not mean that the people of South Dakota have failed in their efforts to protect the rights of unborn children. The law provides a platform for pro-life education, so it would be wrong for them—and for pro-lifers—to capitulate prematurely. We were told during Roberts’s and Alito’s confirmation hearings that Roe v. Wade was a “super-duper precedent,” and has been upheld by the Supreme Court 28 times. Does it really matter for the pro-life cause if Roe is upheld 29 times? I fail to see how one more loss on this front would be a super-duper setback.

From a legal perspective, some of the most momentous Supreme Court decisions in American history came about via cases that were deemed “losers.” In 1896, the Supreme Court ruled in Plessy v. Ferguson that the Constitution's equal protection clause permitted state and local governments to offer “separate but equal” public services to blacks and whites. The Supreme Court made a statement—that racial segregation was permissible--in the Plessy case, but gradually the American people came to realize that it was a statement that they could not stomach. Finally, in 1954, in the case of Brown v. Board of Education, a challenge to racially segregated public schools, the Supreme Court reversed Plessy and threw out the separate-but-equal rule. In passing sweeping pro-life legislation, South Dakota’s lawmakers are at the very least creating an opportunity to force the Supreme Court to make a statement that could jolt Americans into awareness that unrestricted abortion is a moral, legal, and physical evil that should not be supported.

Situations such as this one create great teaching moments for society; and education is what it’s all about in the pro-life movement. Our audience isn’t necessarily the 24 percent of Americans (according to a January 2005 poll by the Los Angeles Times) who believe that abortion should be readily available under all circumstances. It’s the 41 percent of fence-straddlers who already accept the general concept that abortion is wrong, but because of a lack of public education and awareness do not realize that there is no moral, legal or medical justification for the exceptions most often touted by abortion advocates, and that opposing abortion publicly is not a matter of imposing one’s personal beliefs on another, but a matter of constitutional sanity. The South Dakota law is crucially important because it could force just such a public dialogue about the truths of abortion—a dialogue that was short-circuited by Roe v. Wade more than 30 years ago.

That means that even a loss in the Supreme Court could be a pro-life victory. When Rosa Parks was arrested for not sitting at the back of the bus, it wasn’t a defeat for her, because her objective was not merely to ride in the front but to show the hypocrisy and the immorality of prohibiting blacks from the same access to public transportation that whites had. Our ultimate goal in the pro-life movement is to end abortion, and we cannot achieve this goal if we do not have the opportunity to demonstrate clearly the evils of abortion and the negative attitudes of many Americans toward it. Some argue that an incremental approach—chipping away around the edges of Roe v. Wade until there is a Supreme Court majority willing to overturn it—is the only strategy that makes sense. I would disagree. Abortion was not legalized incrementally. With the issuing of Roe v. Wade and its companion decision, Doe v. Bolton, in 1973, an overreaching Supreme Court usurped the prerogatives of the state legislatures and imposed abortion on demand by fiat. There is nothing wrong with repeatedly asking the Supreme Court to nullify the judicial stranglehold that Roe has imposed upon America.

This does not mean that we should abandon attempts to limit the reach of Roe and Doe through sound, principled legislation that attempts to protect the unborn. But that should not preclude taking advantage of opportunities, such as the South Dakota ban, to lead a head-on assault that could change public opinion and help to engender Roe’s reversal.

We must never forget that Roe v. Wade was an act of naked judicial tyranny not based upon any right to abortion contained in the Constitution. By allowing the courts to nullify democratically enacted legislation, we accede to that tyranny. And the pro-lifers who argue against challenging the Supreme Court are essentially agreeing with the abortion-activists' argument that the Supreme Court is actually a super-legislature entitled to set aside state laws with which a majority of its members disagree. Meanwhile, nearly 4,000 unborn babies die in abortions every day that we let Roe stand.

Babe Ruth is remembered as one of the greatest hitters ever to play the game of baseball, yet he struck out nearly as many times as he knocked the ball out of the park. Similarly, we pro-lifers should not buy into the argument that just because we won’t hit a home run every time, we shouldn’t bother trying to swing.

Join the Discussion
comments powered by Disqus