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The Road Map To Overturning Roe v. Wade
What Can the States Do Now?
By Clarke D. Forsythe
Senior Counsel, Americans United for Life
Author, Politics for the Greatest Good:The Case for Prudence in the Public Square (2009)
What we call abortion today will be looked
back on as barbarism and one of the reasons is
that [future generations] will be able to better
control fertility…This notion of surgical abortion is going to be looked back on as barbaric.
- William Saletan, Contributor, Slate1
E
fforts to overturn Roe v. Wade began
immediately after the decision was handed down. Although the overturning of Roe will
not happen during the Obama Presidency and
may seem to be a long-term prospect, there are
progressive steps the states need to take to be
ready for that opportunity. Those steps will, in
turn, result in the states becoming more prolife socially, politically, and legally.2
State legislators and state policy organizations
need to have an articulated vision for a culture
of life in their states, a clear understanding of
the opportunities and obstacles before them,
a comprehensive plan that they are actively
working toward year by year, and a track record of accumulated victories.
of the 2011 legislative sessions, to the growth
of fetal homicide laws and wrongful death (of
the unborn child) laws, to the drop in abortions,
to progress in public opinion, to the passage of
prohibitions after 20 weeks. Examples of such
progress include the following:
A constitutional strategy which (1)
corrects state activist court decisions creating a
state version of Roe, or (2) prevents state judges from taking policy and legal determinations
inherent in the abortion issue away from the
people;
•
North Carolina became the 37th state
to enact a fetal homicide law in 2011
(and Tennessee strengthened its law);
28 of these laws extend legal protection from conception. Only one or two
of these laws existed before Roe.3
•
In September 2011, the Alabama Supreme Court, in a case called Mack v.
Carmack,4 unanimously overturned
two prior decisions limiting wrongful
death actions for the unborn to viability, and held that a wrongful death action can be brought for the killing of
an unborn child at any time of pregnancy.5
•
Also, in September 2011, the U.S.
Court of Appeals for the Eighth Cir-
It is a tall order, especially when considering
judicially imposed abortion-on-demand in every state and the aggressive push for abortion
by the current Administration. And it helps
explain why comprehensive protection for human life has thus far eluded our grasp.
But progress has been made, from the success
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cuit upheld most of the “advisories”
about the risks of abortion in the South
Dakota informed consent law.6 A dissenting judge would have also upheld
the “suicide advisory” about the “increased risk” of suicide.7 For the first
time since Roe v. Wade, the federal
judges’ various opinions discussed the
medical data on the risks of abortion in
considerable detail. Informed consent
laws were the impetus for this.
•
•
Also in September 2011, the British Journal of Psychiatry published
an analysis of 22 previous studies on
the relationship between abortion and
mental health, finding that women
with a history of abortion had an 81
percent higher risk of subsequent mental health problems.8
And, with the scandals and state and
federal deficits, Planned Parenthood
has been under greater pressure than at
any time since Title X was enacted in
1970.9
Obviously, enormous obstacles remain, which
require corresponding courage, perseverance,
tenacious focus, and creative solutions. But
progress is evident. And abortion activists are
reportedly not challenging many pro-life laws
because they fear the Court’s current majority
of five (Justices Roberts, Kennedy, Alito, Scalia, and Thomas) will extend the 2007 decision
in Gonzales v. Carhart10 to allow stronger prolife regulations.11
The states are key to implementing an effective
strategy to overturn Roe. What the states accomplish, or don’t, in the next several years—
Americans United for Life
in terms of legislative protection for life, medical regulations to protect women, and reducing
the number of abortions—will largely determine the future of Roe: whether, how, and
on what timeframe it will be overturned. The
states are the constitutional forum in American
politics best positioned to reflect public opinion on abortion and to take positive action to
protect human life and protect women from the
negative impact of abortion. And just as abortions dropped approximately 19 percent during the Clinton years because of life-affirming
state legislation and other factors, new political, legislative, educational, and cultural initiatives can have an impact in undermining Roe
and reducing abortion even while a pro-abortion Administration or Congress is in power in
Washington.
What follows outlines five essential elements
to help a state effectively plan for the overturning of Roe:
(1) Strategic assessment;
(2) Comprehensive plan;
(3) Task force on status of abortion law
when Roe is overturned;
(4) Legislative building blocks for success; and
(5) Raising public awareness of the negative impact of abortion on women.
(1) Start With a Strategic Assessment
States need to thoroughly and frankly assess
the strengths and weaknesses of their organizations and accomplishments and thoroughly understand the cultural, political, legislative, and
constitutional obstacles that impede their success before they can identify solutions to those
obstacles. What has been the track record in
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the state legislature over the past decade? Is
the legislature improving in pro-life strength?
Legislative victories, even small ones, build
important political momentum.
based problem, ingrained in our culture over
the past 39 years.
Despite Roe, states have enacted legislation
over the past three decades that has limited the
abortion license, reduced abortions, increased
legal protection for the unborn, and increased
protection for women from the physical and
psychological risks of abortion. For example,
37 states have unborn victims of violence laws
which virtually did not exist in 1973, and 28 of
those establish legal protection at conception.
Likewise, 31 states have enforceable informed
consent laws that didn’t exist in 1973.
Roe v. Wade is a tremendous obstacle to a culture of life in America. By distorting the U.S.
Constitution, the Supreme Court imposed a
law of abortion-on-demand in every state and
county across the country and empowered federal courts in every state to eliminate abortion
prohibitions or regulations that arguably conflict with Roe. No matter how strongly public opinion may support abortion prohibitions
or regulations, the federal courts are empowered by Roe to invalidate and sweep away that
popular support, and they have done so in hundreds of instances over the past 39 years.
Looking forward, there are strategies the states
can pursue that can improve the situation, prepare the ground for future progress, and work
toward a culture of life. A spectrum of political and legislative success is outlined in the
50-state ranking in Defending Life 2012. Different states are on different points of the spectrum in their ability to limit abortion and protect life in the law. Louisiana and Mississippi
are very different from California and New
York. But all states need a vision of a culture
of life in their state and a strategy to get there
from where they are in 2012.
A few states have devised a plan to prepare
their state for the overturning of Roe and are
making periodic assessments. Criteria for such
an assessment can be found in the State Rankings in Defending Life 2012. A comprehensive
strategy will necessarily include constitutional, political, legislative, educational, and cultural initiatives because the national policy of
abortion-on-demand—imposed by the federal
courts in every state—has become a broadly
(2) A Long-Term Comprehensive Plan
A direct assault on Roe—by constitutional
amendment or through the courts—is not feasible in the next few years because of obstacles
currently beyond our control. Those obstacles
include the Obama Administration (which is
aggressively pro-abortion), the current political
make-up of the U.S. Senate (which is aggressively pro-abortion and responsible for confirming new justices), the current makeup of
the U.S. Supreme Court, and the state of public
opinion.
For example, we do not have five votes on the
Supreme Court to overturn Roe, let alone the
six that would be realistically necessary for a
stable overruling. The makeup of the Supreme
Court will not improve during the current Administration, and it may become even more
pro-abortion.12
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For these reasons, a long-term plan is necessary. The five primary elements of such a comprehensive plan include:
•
•
•
•
A constitutional strategy which (1)
corrects state activist court decisions
creating a state version of Roe, or (2)
prevents state judges from taking policy and legal determinations inherent
in the abortion issue away from the
people;
key political value for voters, and (2)
elects public leaders who oppose legal
abortion and other assaults on human
life and dignity; and
•
A cultural strategy that (1) reduces outof-wedlock pregnancy, (2) strengthens
marriage, (3) builds an ever-widening
network of services for women with
unplanned pregnancies, and (4) informs women and citizens of those
services.
A legislative strategy that (1) restricts
abor(3) Task Force on Station as much
Thus, a task force within tus of Abortion Law
as possible in
When Roe is Overeach
state
made
up
of
light of federal
turned
court obstrucdoctors, lawyers, legislation, and (2)
Abortion prohibitions
tors,
law
enforcement
exmakes abortion
were effectively enan anomaly by
perts, and others - should forced before Roe to
affirmatively
protect women and
be
recruited
to
evaluate
protecting
a
unborn children from
developing huthe legal status of abor- abortion. But abortion
man being outno longer
tion in that state when prohibitions
side the context
exist in more than 40
Roe is overturned.
of abortion as
states—either because
much as posthey have been repealed
sible;
or because a state judicial version of Roe
makes them unenforceable. Contrary to public
An educational strategy that (1) in- assumption, there will be no immediate change
creases public awareness that abortion in the states when Roe is overturned. Abortion
is bad for women socially, physically, will remain legal in most states until the legisand psychologically, (2) denigrates lature affirmatively acts.
Supreme Court control of the abortion
issue, and (3) helps voters understand Thus, a task force within each state—made up
both the practical implications of Roe of doctors, lawyers, legislators, law enforceand of overturning; Roe;
ment experts, and others—should be recruited
to evaluate the legal status of abortion in that
A political strategy that (1) establish- state when Roe is overturned.13
es the protection of human life as a
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That task force should also anticipate legislative and judicial moves by abortion advocates
to block the enforcement of any current or new
laws, and create a media and legislative plan to
pass the strongest possible limits on abortion
and to effectively enforce them.
(4) Legislative Building Blocks for Success
Given the severe constraints of the Supreme
Court’s decisions in Roe v. Wade, Doe v.
Bolton, and Planned Parenthood v. Casey,
AUL’s model legislation regarding abortion is
designed to do several things:
•
Affirmatively protect the unborn child
within the context of abortion;
•
Affirmatively protect the unborn child
outside the context of abortion;
•
Reduce abortions as much as possible;
•
Limit the scope of the abortion license
in law;
•
Protect women from the dangers and
risks of abortion;
•
Educate women, legislators and the
public about the risks of abortion; and
•
Create test court cases with various
objectives, such as improving medical
regulations, limiting the sweep of Roe,
demonstrating the contradictions of
Roe, and educating the public.
This requires a close examination of current
obstacles and opportunities, especially of what
the Supreme Court and the justices have said in
previous cases.
Every issue of Defending Life includes model
legislation to further these objectives. These
models are also available on AUL’s website
(www.AUL.org).
(5) Public Awareness of the Negative
Impact of Abortion on Women
Progress will depend on raising public awareness of the negative impact of abortion on
women through education and legislation.
James Hunter’s analysis of the 1991 Gallup Poll on “Abortion and Moral Beliefs” in
his book, Before the Shooting Begins, shows
that the American public sees abortion as two
sides of a coin: the impact (from abortion or
restricting it) on the unborn, and the impact
(from abortion or restricting it) on women.
His analysis also shows that the public adheres
to a series of myths about abortion (its benefit
to women) and about Roe (the impact of overturning it). The public sees legal abortion as
a “necessary evil,” bad for the unborn child
but good for women (keeping them out of the
“back-alley” by providing safe abortions).
For this reason, public education that emphasizes the impact on the unborn alone is insufficient because it fails to account for this paradigm. The public is concerned about both the
impact on women and the impact on the unborn
from abortion or from abortion prohibitions.
The Supreme Court, along with the public, assumes that legal abortion is, on balance, good
for women. Justice Blackmun, in the Court’s
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opinion in Roe, relied on the assumption that
“abortion is safer than childbirth.” The data
the Court relied upon was thin and flawed, and
no attention was given to the long-term risks
of abortion. Critically, the public is still not
aware of the true risks.
Legislation that focuses on short-term and
long-term risks to women can educate legislators, the public, and the media. Public awareness can and must be made through both education and legislation.
Further Considerations
Political Obstacles and Solutions
There is an obvious dynamic between legislation and elections. States should have a plan to
use each election cycle as a means of increasing pro-life representation in the legislature
and educate voters to view a candidate’s position on abortion as a key qualifying criterion.
nally came, all Republicans and more than half
of the Democrats voted for the amendment.15
Examples such as this demonstrate that pro-life
citizens in each state need to be organized and
focused on supporting pro-life public officials
and candidates for public office. Educational
and legislative campaigns are necessary building blocks to political reform because they
shape the political climate and the issues that
make up the next election campaign.
For example, each state needs one or more effective political action committees (PACs) to
help pro-life public officials and provide an
opportunity for pro-life citizens to identify and
financially assist pro-life officials and candidates. Pro-life governors, attorneys general,
legislators, and state and county prosecutors
are critical, because they are the state legal
officials who will vote for pro-life laws, sign
them, defend them in court, or effectively enforce them.
Educational Obstacles & Solutions
Political obstacles can tie up pro-life legislation for years, and it requires persistence and a
carefully tailored strategy to circumvent such
obstacles. For example, Tennessee recently
finished an eight-year battle over important,
life-affirming legislation. It began in 2000
when the Tennessee Supreme Court manufactured a “right to abortion” in the state constitution in Planned Parenthood v. Sundquist.14
A constitutional amendment to overturn the decision was introduced in 2001, but it was stymied by the Speaker of the House every year
until 2009. With a new speaker, the Tennessee
House and Senate finally passed SJR 127 in
2009, a state constitutional amendment intended to overturn Sundquist. When the vote fi-
Americans United for Life
Legislative initiatives are limited or supported
by public opinion and how legislators read
public opinion. Therefore, public and media
education are key to shaping public understanding that will in turn support legislation.
Effective public education on abortion must effectively address the paradigm that the public
views the abortion issue as two sides of a coin
(balancing the impact on the unborn and the
impact on women) and sees legal abortion as
a “necessary evil.” In general, the American
public is in ignorance regarding the risks of
abortion. Therefore, the answer to the myth of
abortion as a “necessary evil” is to raise public
awareness of the negative impact on women.
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Because there are so many myths about abortion and Roe, public education to prepare a
state needs to emphasize seven themes:
elections, AUL’s anti-Freedom of Choice Act
(FOCA) petition hit over 700,000 signatures. Constitutional Obstacles & Solutions
1) Abortion is bad for women.
2) The people should decide the abortion
issue, not the Supreme Court.
3) The Supreme Court causes abortion to
be uniquely controversial because it
imposes a nationwide policy of abortion—for any reason, at any time of
pregnancy—that is supported by only
seven percent of Americans.
4) Overturning Roe means the people
will decide the issue.
5) Overturning Roe will leave abortion
legal in most states until the legislature
affirmatively acts.
6) The law can protect women and the
unborn through abortion law just as
it has through unborn victims of violence laws, wrongful death laws, and
other laws that confer legal recognition and protection on the unborn.
7) There are resources/services available
to enable a woman to carry to term
and to raise a child or to formulate an
adoption plan.
No state educational strategy can be effective without a vibrant and coordinated media
strategy which employs press releases, media interviews, op-ed articles, comprehensive website/online content, and blogging to
spotlight legislative issues, the positions and
decisions of public officials and candidates,
and the conflict between pro-life policies
and pro-abortion policies. In addition, the
power of social media (e.g., Facebook, Twitter, and YouTube) is in going “viral.” For
example, within a few months after the 2008
State constitutions may be shaped by legislatures and ratified by the people, but they are
often distorted by judges. Constitutional provisions, state supreme court decisions, or constitutional changes by ballot initiatives may
block positive judicial or legislative changes.
Currently, 16 states need to overturn state versions of Roe—state appellate decisions creating a right to abortion under the auspices of the
state constitution.16 Even when Roe is overturned, these state court decisions will block
enforcement of abortion prohibitions and perhaps abortion regulations as well.
Generally, the evidence suggests that appointed state supreme courts, which are less
responsive to the people, have been more proabortion than elected judiciaries.17 Thus, prolife leaders must monitor and oppose efforts in
their states to move state appellate judiciaries,
especially the state supreme or highest court,
toward an appointed system.
Effectively Protecting Persons
Protecting the unborn as human persons is important. But the most important question is:
What are the most effective means? How can
developing human beings be effectively protected in the context of current opportunities
and obstacles?
Unborn victims of violence laws and wrongful
death laws have progressively done this, state
by state, for the past quarter century. States
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States with appellate decisions creating a right to abortion under the
auspices of the state constitution
should work for unborn victims of violence,
wrongful death laws, and other laws18 that protect the unborn from conception. These are essential building blocks to more comprehensive
protection. But, if states have these in force,
what more can be done?
“Personhood” organizations have sprouted
in various states to sponsor state human life
amendments (HLAs) or constitutional personhood amendments. States must thoroughly explore the pros and cons of abstract state human
life (personhood) amendments. These have
been proposed in several states without a track
record of success, sufficient deliberation, or
any effective plan to succeed.
Certain questions need to be answered. What
is the purpose of such an amendment? Is it in-
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tended to overturn Roe v. Wade? Or is it intended to fix a legal or constitutional problem in the
particular state?
Realistically, a personhood amendment cannot and will not overturn Roe because it does
not create a conflict with Roe and because the
U.S. Supreme Court can easily refuse to hear
any case. The Court has rejected similar cases
on numerous occasions over the past three decades. The most likely result is either the Supreme Court will refuse to hear the case or the
courts will follow the result in the case of Arkansas Amendment 68 (1988), where Amendment 68 did not create a direct conflict with
Roe and the Amendment was invalidated only
insofar as it conflicted with the federal Hyde
Amendment.19
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The real question is whether an amendment,
or which version of an amendment, can fix a
particular constitutional problem in the state.
This requires a state-by-state—not a one-sizefits-all—evaluation.
There may be better alternatives than a state
constitutional amendment. If a state has already enacted unborn victims of violence laws,
wrongful death laws, and other protective laws
that provide legal recognition and protection
from conception, the state might consider (1) a
constitutional amendment specifically drafted
to address the state version of Roe, as Tennessee did in 2009; (2) a constitutional amendment like that in the Rhode Island constitution, which neutralizes the state constitution as
an independent source of abortion rights,20 or
the Arkansas constitution which relates to the
public funding of abortion;21 or (3) statutory
preambles like the Missouri preamble, which
includes wording that human life begins at
conception and unborn children have protectable interests in life and well-being, and which
was permitted to go into effect (without a specific ruling as to constitutionality) by the U.S.
Supreme Court.22
At the very least, before any such amendment
is considered, legislative and political building
blocks for success should be in place.
Conclusion
Clearly, state organizations cannot do all of this
at once. They need to constantly strive to improve and consistently look to and learn from
those who are doing it better. The most challenging aspect is deciding what priorities need
to be addressed in an ordered manner to build
success, public awareness, and political mo-
mentum. In that regard, AUL has developed a
powerful tool—Defending Life—to help states
prioritize their strategy and take steps to best
implement a lasting culture of life.
Endnotes
1
Tocqueville Forum Roundtable on Bioethics, Technology and
the Human Person: Prospects for the Future of American Democracy at 53:04 (Georgetown University October 11, 2008),
available at https://mediapilot.georgetown.edu/sharestream2gui/
getMedia.do?action=streamMedia&mediaPath=0d21b6201e2c1
1dd011e3aa64cb90020&cid=0d21b6201df9d7e6011e20cfb5eb
0052&userFrom=deeplinking (last visited Oct. 24, 2011).
2
See C. Forsythe, The Road Map to Reversing Roe v. Wade, in
Defending Life 2009 63 (2009) (framed in the wake of the U.S.
Supreme Court’s 2007 decision in Gonzales v. Carhart and the
2008 elections).
3
See Comment, Is the Intentional Killing of an Unborn Child
Homicide?, 2 PAC. L. J. 170 (1971).
4
___ So.3d ___ (Ala. September 9, 2011); 2011 Ala. Lexis 141.
5
Alabama becomes the 10th state.
6
653 F.3d 662 (8th Cir. 2011), 2011 U.S. App. Lexis 18300.
7
Id. at *28 (Gruender, Cir. J., concurring in part and dissenting
in part).
8
P.K. Coleman, Abortion and mental health: quantitative synthesis and analysis of research published 1995-2009, 199 BRIT.
J. PSYCHIATRY 180 (2011).
9
See Americans United for Life, The Case for Investigating
Planned Parenthood 2-3 (2011), available at http://www.aul.org/
aul-special-report-the-case-for-investigating-planned-parenthood (last visited Oct. 11, 2011).
10
550 U.S. 124 (2007).
11
See E. Bazelon, The Reincarnation of Pro-Life, New York
Times Magazine, May 27, 2011.
12
Justices Sotomayor and Kagan will not tip the balance on
the Court, but will solidify and extend into the future the proRoe majority on the Court. There is still a majority—Roberts,
Kennedy, Scalia, Thomas, and Alito—who, in my opinion, will
uphold virtually any regulation of abortion that makes medical
sense. See Gonzales v. Carhart, 550 U.S. 124 (2007).
13
A good place to start would be a careful reading of P.B Linton,
The Legal Status of Abortion in the States if Roe v. Wade is Overruled, 23 Issues in Law & Medicine 3 (2007).
14
38 S.W.3d 1 (Tenn. 2000).
15
By law, both chambers of the legislature must again adopt SJR
127 in the 2011-12 legislative session before it is placed on the
ballot in 2014.
16
See C. Forsythe, Judicial Activism Also Plagues the States:
State Constitutional Rights to Abortion, in Defending Life 2009
127 (2009).
17
See AUL’s State Supreme Court Project, available at http://
www.aul.org/courts/state-supreme-courts/ (last visited Oct. 24,
2010).
18
See D. Burke & M. Novick, Primer on Legal Personhood: Le-
Defending Life 2012
118
gal Recognition and Protection of the Unborn and Newly Born,
in Defending Life 2012, supra.
19
See Little Rock Family Planning Servs. v. Dalton, 860 F.Supp.
609 (E.D. Ark. 1994), aff’d, 60 F.3d 497 (8th Cir. 1995), cert.
denied in part, rev’d in part, 516 U.S. 474, 475-76 (1996) (“We
grant certiorari as to the second of these questions. Accepting
(without deciding) that the District Court’s interpretation of the
Hyde Amendment is correct, we reverse the decision below insofar as it affirms blanket invalidation of Amendment 68.”).
20
See Art. I, § 2 of the constitution of Rhode Island.
21
See Amendment 68, § 1 of the constitution of Arkansas.
22
Webster v. Reprod. Health Servs., 492 U.S. 490 (1989).
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