Almost 40 years ago, when beginning involvement with the prolife movement, I recalled what a national leader said: “The only way to overturn a Supreme Court decision is with a constitutional amendment.”
He was a physician, not an historian nor constitutional scholar. It says reams about the ignorance of basic citizenship regarding the Constitution, and our history, that such statements could pass with unquestioned acceptance then – as it did with me – and are still vehemently defended today.
A constitutional amendment to ban abortion is an impossibility. After Roe, Senate hearings were held for this purpose, first in 1974 and again after the 1980 Reagan landslide. Alas, the pro-life movement could not agree with itself.
Even if a constitutional amendment passed, one merely needs to see how other amendments are ignored or violated today.
Some wanted a pure “no exceptions” amendment, others only one: “life-of-the-mother.” Others stated that the notoriously approved 14th Amendment – the instrument that brought legal abortion – should be turned on itself to protect life, citing the phrase “nor shall any state deprive any person of life, liberty, or property, without due process of law.” Still others thought a court reversal was the way to go, which would take a few years as sympathetic presidents made prolife appointments to the Supreme Court. Another amendment stated, “The right to abortion is not secured in this Constitution,” thus admitting that it might exist in the 9th Amendment.
Let us examine this noble but failed amendment strategy. Even if passed, one merely needs to see how other amendments are ignored or violated today. Pro-abortion presidents would certainly discover the true nature of their office and refuse to enforce it, let alone what the courts might do to warp it, as they have other amendments.
With such disagreement, how likely is it that two-thirds of the House and two-thirds of the Senate would pass it? And then sending it to liberal states for approval? This has clearly been a dead-end strategy which has wasted time and human life.
The Constitution already holds a far more immediate solution in Article III, Section 2:
“In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.” (Italics mine)
And as we have already seen, the president’s own discretion has the final say over whether a Supreme Court opinion is enforced.
This means that Congress could have removed the courts from adjudicating abortion or any other social issue best left to the states. And this would require a mere majority of both chambers, not a “super majority” of two-thirds, and not three-quarters of the 50 state legislatures.
This clause was invoked during the Alaska Pipeline controversy in the early 1970s, during a perceived energy crisis. Congress would not permit the endless litigation that would have delayed or prevented construction for decades. The pipeline construction bill removed the courts from any judicial review.
And as we have already seen, the president’s own discretion has the final say over whether a Supreme Court opinion is enforced. This makes a mockery of Ronald Reagan’s prolife credentials when he once said at a press conference, “Well, my oath of office requires that I enforce all Supreme Court decisions, even those I disagree with.”
With a constitutionally astute executive, the Roe opinion would have languished. Of course, another president could have taken it up and tried to enforce it, but state resistance would have likely been too strong to tolerate it.
Pat Buchanan, Reagan’s chief of staff at the time, admitted that Reagan’s statement was flawed and once promised not to enforce Roe if himself elected president. Yet Buchanan soon retreated from this as he sought the 2000 Republican nomination.
The true solution will not please many pro-lifers.
The reversal of Roe by the court itself is fraught with dangers. They would have to admit that the courts had no authority to interfere with state legislation in the first place, and that their opinion need not be carried out. Unless it was worded humbly, as in, “The court finds that it has neither the authority nor the competence to interfere with the social issues of the individual states,” we would be open to future courts, made up of anti-life presidential appointments, reversing the reversal, and placing us into an endless yin-yang of oscillating federal policy.
The true solution will not please many pro-lifers.
It is state nullification.
It is neither treasonous nor racist nor untried nor ineffective nor unconstitutional. One merely needs to look at the nullification of the federal marijuana laws by numerous states. Dr. Thomas Woods covers all the objections online in defense of his seminal Best-Seller, “Nullification: How to Resist Federal Tyranny in the 21st Century.”
State nullification would allow the cultural mores of each state to decide the endless questions of “exceptions.” Many, perhaps most, would be imperfect and hopefully be revised … but not all. And the indisputable fact is, millions of lives would be saved.
The alternative is the status quo – awaiting an unrealistic “culture of life” from coast-to-coast or accepting federal control in matters where it has no competence. It means abortion-on-demand all nine months of pregnancy in all 50 states. This is a far more hideous future to contemplate. I recall the shocking sermon on Roe’s 13th anniversary, by a bishop no less:
“Twenty million! Who would have guessed?”
Well, we are now at 47 years and 65 million.
The U.S. was never meant to be a monolithic, one-size-fits-all tyrannical empire, cramming urban, liberal social policies down the throats of the likes of Utah, Nebraska, Oklahoma, North Dakota or Indiana. The states predated and created the federal government for only two purposes: foreign policy and free trade between the states – not to rule their social issues. All else, according to the 10th amendment, is reserved to the states or to the people.
The writer is host of The Bird’s Eye View radio show in Kenai. He ran for U.S. Senate in 2008 as member of the Alaskan Independence Party and is the former president of Alaska Right to Life.