David French: In defense of the direct attack on Roe

I don’t think the Alabama abortion law is a good law but David French, writing at NR, suggests that it may be a good strategy for the pro-life side. Yesterday he made the case for states fighting Roe head on so this issue can be returned to the states:

Late last week, I had a lengthy phone conversation with state representative Ed Setzler, sponsor of Georgia’s legislation. He said his bill wasn’t “waving its fist at Roe; it’s answering Roe.”

Specifically, he pointed at a provision in Part IX of Justice Blackmun’s opinion, where Blackmun states that if the “personhood” of the baby is established, then the pro-abortion case “collapses.” The late Supreme Court justice was of course discussing the definition of personhood under the federal constitution. Setzler, however, notes that Supreme Court doctrine has long allowed states to expand constitutional liberties. They can establish standards of religious freedom, free speech, or due process, for example, that go beyond the First and Fifth Amendments. They cannot be more restrictive than the federal Constitution.

In the abortion context, this doctrine traditionally has been interpreted to allow states like New York to protect abortion rights beyond the minimal threshold required by Roe and Planned Parenthood v. Casey. Georgia (and potentially Alabama) would be asking the Court to permit them to expand the constitutional liberty of the unborn child and to recognize the distinct human identity of the baby in the womb.

In other words, Georgia and Alabama are saying: “We’ve read Roe, and we’re making the very legal statement that Justice Blackmun says would fundamentally undermine the case for abortion. Under our federal system, we can expand the legal definition of life.”

As Allahpundit pointed out yesterday, even Pat Robertson thinks the Alabama bill goes too far and that it is likely to backfire on the pro-life movement. There is good reason to question whether current members of the court, including Chief Justice Roberts and Justice Kavanaugh, would even be willing to overturn Roe at this point. In other words, this direct assault on the heart of Roe could result in an affirmation of Roe that keeps it around for decades to come.

French is aware of that possibility but in his view, pro-lifers who voted for Trump, in part, because of his commitment to appoint pro-life judges deserve to know whether that effort mattered. If it did and Roe is overturned then the issue returns to the states. On the other hand, if Roe is affirmed then at least the pro-lifers know where they really stand.

It’s an interesting argument but I think it leaves out several important things, the most significant of which is that the legal battle is likely to be influenced by the political battle and, a subset of this, the media battle. If passing an extreme law to challenge Roe also works Roe supporters (including those in the media) into a frenzy in the process, it’s naive to think only the legal battle will matter. If the left can create enough of a firestorm in the streets and enough outraged op-eds in the papers, Justice Roberts may decide he doesn’t want to go down in history as the Chief Justice who bucked the elite from coast to coast.

Just this week I wrote about former NY Times Supreme Court reporter Linda Greenhouse who expressed concern over the future of Roe. She is clearly pro-choice and suggested the way to stop Roe from being overturned was to make sure the people who write about such things let everyone who opposes such changes know what is happening. In other words, use the left-leaning media to mobilize opposition. And let’s face it, there’s plenty of left-leaning opposition to the pro-life movement at major media outlets all of which will turn out to amplify the message of only one side of this debate.