Test the Limits or Pull the Trigger—Two Approaches to Abortion

Mar 6, 2020 by David Fowler

African-American baby in mother's arms
Governor Lee’s abortion legislation (SB 2196/HB 2263) sailed out of the state Senate’s Judiciary Committee on Tuesday. This coming Tuesday, both the governor’s proposal and the Rule of Law Life Act (SB 1780/HB 1962) will be on the calendar for discussion in the House Health Subcommittee. If you are pro-life, you need to know the primary—dare I say, dispositive—difference between the two types of abortion proposals.

While substantially different in their content and approach, the difference between the two abortion bills is not in the motivation of their respective proponents. In the Senate Judiciary’s abortion legislation hearings last August, professor Adam MacLeod said it well in quoting Blackstone’s Commentaries on the Laws of England, “Life is the immediate gift of God, a right inherent by nature in every individual.” So, my observations relate not to matters of the heart.

Rather, the difference lies in what the two bills seek to accomplish.

What Senate Bill 2196 Does and Does Not Seek to Accomplish

According to the testimony of Lang Wiseman, chief deputy to the governor and the governor’s legal counsel, the purpose of SB 2196 is to “test the limits of current Supreme Court precedent while also allowing us to achieve in one instance the most protective provisions under state law that a court would approve.”

That sounds good, but notice the huge concession that is being made. Its proponents are conceding that the U.S. Supreme Court’s “current precedent”—Roe v. Wade and Planned Parenthood v. Casey—is equal to the words of the U.S. Constitution, and those precedents set the constitutional standard by which the constitutionality of all abortion legislation should be evaluated.

That explains why pro-life constituents will listen in vain to the testimony given last Tuesday for any suggestion by SB 2196’s proponents that anything in the bill might lead the U.S. Supreme Court to consider, let alone reverse, those decisions.

In other words, the proponents of SB 2196 have conceded that they will not mount any challenge to the U.S. Supreme Court’s usurpation of the constitutionally protected right to life. This is so despite the testimony of law professor Adam MacLeod at the state Senate’s hearings on abortion legislation last summer:

The Ninth Amendment reserves to the people and states, and the Fourteenth Amendment does not abrogate, the power to specify and secure common-law rights, which are those rights that Americans enjoy by virtue of ancient customary law and natural law. Among these ancient rights is the right to life, which in the common law is known as an “absolute right.” The right to life is enjoyed by all natural persons, which includes unborn human beings, the aged and infirm. The first duty of every state is to secure the rights that people already have. . . . And because states have an obligation to declare and secure absolute rights and to remedy inherent wrongs, they also have the power to do so.


What Senate Bill 1780, the Rule of Law Life Act, Seeks to Accomplish

As I said last week, the real issue isn’t whether we should try to ban abortion once a heartbeat is detected or at any of the other 11 places in which SB 2196 is willing to draw a line between the life and death of an unborn child, but who should draw the line—the U.S. Supreme Court or the states through their elected representatives. The real question is who should govern and set the public policy that will apply to all Tennesseans?

Since the stated goal of SB 2196 is to find out which unborn children can be saved within the “limits” of the “current precedent” of Roe v. Wade and Planned Parenthood v. Casey, its proponents necessarily believe the answer to this question of governance is the U.S. Supreme Court.

On the other hand, proponents of the Rule of Law Life Act (SB 1780) want the legislature to enact legislation that provides the best opportunity for the state to argue that Roe and Casey should be reversed so Tennesseans can take back their rights of self-government from the U.S. Supreme Court. Its proponents necessarily believe the answer to the question of governance is our representatives in the state legislature.

Rule of Law Life Act proponents echo what Justice Clarence Thomas said in an abortion-related opinion last year: “Ordinarily, balancing moral concerns against the risks and costs of alternatives is a quintessentially legislative function. But as the Court of Appeals suggested, the undue-burden standard is an ‘aberration of constitutional law.’” (emphasis added)

His observation ties into a statement Justice Stephen Breyer made just this week during oral arguments over a Louisiana abortion law requiring abortion doctors to have admitting privileges at a local hospital. His statement proves that the Rule of Law Life Act is aptly named:

In the country people have very strong feelings and a lot of people morally think it’s wrong and a lot of people morally think the opposite is wrong. And in Casey, and the later cases, I think personally the Court is struggling with the problem of what kind of rule of law do you have in a country that contains both sorts of people. (emphasis added)

Weighing moral concerns is a legislative function (Thomas) and that creates a rule of law problem for courts (Breyer) because a court’s only power is to issue a judgment that resolves a particular dispute between particular parties. Courts have no power to “make law” for everyone in the country, but for the fact we let them get away with it.

How Do You Make a Case for Overturning Roe and Casey?

In Casey, the majority made it very clear what it needed before it would overrule a decision having the cultural dimensions of Roe, and now Casey:

Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.

[O]nly the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure, and an unjustified repudiation of the principle on which the Court staked its authority in the first instance. So to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court’s legitimacy beyond any serious question.

Given that the Casey majority said, “The controlling word in the cases before us is ‘liberty,’”—that being the common mandate rooted in the Constitution—only legislation that provides “accepted standards of precedent” by which the Court’s 47-year old understanding of liberty must be revisited will Roe or Casey be overruled.

Does the Rule of Law Life Act Meet the Casey Test for Overturning Roe?

The Rule of Law Life Act provides 24 pages of court precedent and legal/constitutional reasoning to justify the power of the state to declare and secure the pre-political right to life, a right that the Ninth Amendment says the 14th Amendment cannot be “construed to deny or disparage.”

Those precedents show that the people retained their pre-political right to protect life at all the stages at which it was protected by the pre-political common law, which included that of the “child in the mother’s womb.”

Those precedents show that for more than 100 years and at least twice last year, the U.S. Supreme Court has used the common law to interpret the words in the Constitution.

The Rule of Law Life Act, using these precedents, puts the common law understanding of the word “life” found in the Fifth and 14th Amendments in conflict with the Supreme Court’s unfounded and expansive view of liberty that allows a third party—a doctor—to take another human being’s life.

Deciding Which of Two Different Questions You Want the U.S. Supreme Court to Answer

The Rule of Law Life Act asks only one question when it comes to life: Did the U.S. Supreme Court construe the enumerated right of liberty in a way that denied or abridged the pre-political right of the people retained under the Ninth Amendment to protect the natural and inherent right of all natural persons to life?

If the U.S. Supreme Court hears an appeal, that will be the only question it can ask the parties to address.

SB 2196 offers no Supreme Court precedent and it asks the Court a different question, “At which of 12 different stages of fetal development will you allow Tennesseans to protect the life of natural persons?”

Go on, ‘Pull the Trigger!’

Last year the legislature passed the so-called “Trigger Bill.” It pulls the trigger on enacting the very abortion ban that is in the Rule of Law Life Act if and only if the U.S. Supreme Court reverses, in whole or part, Roe and Casey. It was worth passing. The Rule of Law Life Act is Tennessee’s attempt to pull the trigger.

So, will legislators test the limits of Roe and Casey or put them in their sights and pull the trigger?
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. 

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