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Tuesday, June 22, 2021

The Supreme Court Shouldn’t Return Abortion To The States. It Should Ban Abortion Altogether

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In the wake of the U.S. Supreme Court’s recent decision to reconsider Roe v. Wade this fall, Clarke Forsythe, senior counsel for Americans United for Life and perhaps the most well-known pro-life attorney, proclaimed:

The court desperately needs to decentralize the [abortion] issue and send it back to the states … pro-life leaders need to think long and hard about overturning federalism and taking the issue away from the states.

Forsythe’s view is consistent with his recent Wall Street Journal article, which advanced the view that “the high court could put questions about gestational limits [for abortion access] back into voters’s hands — where they belong.”

Since America is a constitutional republic and not a direct democracy, Americans don’t vote to decide who deserves the protections guaranteed under the U.S. Constitution. Imagine a state with anti-immigrant leaders convincing its citizens to amend state homicide laws so they only apply to victims who are citizens. Unthinkable.

Unfortunately, however, this is a matter of debate in the pro-life movement. While some advocate for the use of a states’ rights approach to overturning Roe, others support pushing for protecting the unborn’s right to life.

Members of the first camp argue the Supreme Court should merely allow states to craft whichever abortion laws their citizens prefer. The second camp believes the Supreme Court should recognize unborn humans as persons within the meaning of the Fourteenth Amendment’s Equal Protection Clause, an interpretation amounting to a constitutional mandate requiring states to protect unborn humans with the same homicide laws that protect born humans outside of the womb.

Law professor Mary Ziegler describes Forsythe as “a brilliant strategist” and the states’ rights approach as a “savvy argument.” She recently boosted years of speculation that the only difference between the two camps is merely a matter of strategy. This theory suggests people such as Forsythe do not truly believe the legality of abortion should be democratically decided; they solely support the states’s rights approach as a moderate, incremental step on the path to rights for the unborn.

But is the divide genuinely borne out of differences of opinion

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