The bill making it a crime for a doctor to perform an abortion (except under limited circumstances) once a fetal heartbeat is detected is “Exhibit A” among the perils of lawmaking and constituent advocacy. I spent six years of my life as a state senator and another eight years as a citizen working to rid our state constitution of a court-created “right” to abortion, so I get the dynamic. I believe in the bill’s cause and the good intentions of those legislators and citizens who support it, but here’s why I just can’t be among them at this point.
The Difficult Job of Being a Legislator
Being a legislator is hard. Being a constituent can be even harder because most people don’t have any clue what being a legislator is like.
The public needs to appreciate that most legislators are not “schooled” in the law. It’s not that only lawyers should serve in the legislature, but state lawmakers are hemmed in between two constitutions—the U.S. Constitution and the state constitution—that they must understand.
That can be a problem because many legislators don’t really know the real specifics of those constitutions. I am not saying that to their shame. The same was true for me; I didn’t even read the state constitution until after I got elected. But as a lawyer I had a huge head start in understanding it, not to mention a huge head start with the U.S. Constitution I’d studied in law school. Constitutions are not easy reading, because their words often have certain legal connotations and historical contexts unfamiliar to most legislators and citizens.
Moreover, legislators have to recognize that whatever they think the constitutions allow or prohibit is subject to the check and balance of a judicial branch that, for better or worse, can hold that a law violates one or both of those constitutions and enjoin the law’s enforcement.
Complicating things more is the fact that the public may know even less about the two constitutions and may be under-informed with respect to the content of the legislation it supports and on which it demands action. The legislation may be poorly drafted and inadequately supported in the legislative record, which is what courts often look at to determine what the legislature was trying to do (think in terms of the importance of a doctor’s records in defending a doctor in a malpractice lawsuit). The public doesn’t understand that, if passed anyway, the law will be shoved back into everyone’s face by a court and for good reason.
Given the convergence of complicated legal and constitutional issues and pressure for action from a well-intentioned, but often under-informed constituency, being a statesman is hard. It’s hard to say to them, “Hold on. Let’s slow down. Let’s get this right even if it takes longer.”
Is a ‘Slower’ Heartbeat (Bill) Healthier and More Viable?
I remember former Sen. Bob Rochelle, often a protagonist of mine, saying, “Sometimes the slower you go the faster you get there.” In other words, the goal should be to get it right, not get it done, particularly when you know you’re going to wind up in court.
I have commended this approach to some of the key legislators relative to the heartbeat bill without any apparent success. So, were I still a legislator, I would have had to raise these questions on the floor and abstained from voting in favor, as some others did.
Among the several reasons is the fact that the majority in Planned Parenthood v. Casey, the last major abortion case, outlined what the Court would look for in future cases in order to justify reversing a precedent like Roe, one that lawyers, judges, and citizens have relied on for decades and one that has woven its way into our social fabric. There was nothing in the heartbeat bill or the legislative record that addressed those points.
To me, that’s a bit like ignoring what my Dad said I had to do in order to go to the Senior Prom and then asking him if I could go any way. With my Dad, asking would be pointless (and perhaps unhealthy), and I suspect it will be so with the heartbeat bill and the U.S. Supreme Court.
What’s Important to the Court Must Be Important to Pro-lifers
Let’s be honest, the United States Supreme Court cares greatly about the public’s perception of its institutional integrity. Belief in its integrity is the only means by which the Court can “enforce” its opinions. When the U.S. Constitution appears to “change” because there is a new justice on the Court, the Court becomes very concerned that it will look political (which it too often is, but it tries to keep up the pretense that it’s not). That’s why the Court set forth guidelines for reversal in the Casey case.
Institutional integrity is a huge issue for Justice Roberts. It explains some of Roberts’ quirky decisions of late. A bill and a legislative record that ignore this consideration will not get Justice Roberts’ support, and on abortion, the pro-life community cannot lose his support.
Understanding this unavoidable check on the legislature’s powers and how the Supreme Court works in regard to long-established precedent cannot be ignored. If it is, the odds go way up that the law will meet with judicial defeat and be enjoined.
What Would I Do?
If it were me, I would start over. Over the summer and fall, I would work on addressing all the issues that are out there. I would work with medical doctors, constitutional scholars, sociologists, and even metaphysicians and psychologists who can and will provide testimony relative to medical science, constitutional law, cultural impacts and considerations, and the implications of worldviews that connect or disconnect our objective essence as living beings from the subjective of “personhood,” respectively.
In other words, I would craft a bill and create a legislative record upon which pro-life lawyers could take on the United States Supreme Court with every potential weapon at their disposal.
Without this kind of serious work being done (and it’s too late to do it this session), I fear the heartbeat bill won’t be judicially viable. But if it passes, I hope, for the sake of the unborn, I am wrong.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.
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