by Sherry F. Colb
My column for this week discusses a Texas bill currently under consideration that would, among other things, prohibit Dilation and Evacuation (or "D&E"), or what the bill calls "dismemberment abortion." D&E is the most common (and perhaps the safest) second-trimester abortion method, and it involves taking apart the fetus while it is still in the woman's uterus and then removing the parts, one by one, through the birth canal. Similar prohibitions have been struck down in other states, and because of the obvious burden that a prohibition on this method would impose (particularly given the illegality of D&X (dilation and extraction or intact dilation and evacuation) under the federal Partial-Birth Abortion Ban Act ("PBABA")), the Texas bill--if it passes--will likely meet the same fate. Yet Texas and other states continue to pass such laws. My column suggests that these laws function as speech rather than as true attempts to directly regulate behavior.
In this post, I want to pose a different question. In addition to asking why a legislature would pass a law that is doomed to be invalidated by the courts, I want to raise a question that Michael Dorf raised when I discussed my column with him in conversation. Why is it that anti-abortion activists seem especially prone to pressing for plainly unconstitutional legislation, by contrast to other activists who accept the courts' rulings as binding and move on to other approaches?
People who strongly favor gun control, for example, do not press for what they know will be deemed unconstitutional forms of gun control. And the same is true for those who favor campaign finance reform. It seems that those who believe abortion is wrong proceed with the lawmaking project in the face of contrary court rulings in a way that distinguishes them from the crowd. Why is that?
To truly answer this question, we would have to get into the heads of the people who decide how to go about their particular projects and discover what motivates them. One guess, though, is that the anti-abortion movement has long viewed itself in terms of performing civil disobedience. Its members protest in areas near clinics where they are not supposed to enter, for instance, in order to try to prevail on women not to terminate their pregnancies. The fact that a court has said that their conduct violates the law or is not protected speech under the First Amendment does not seem to deter them. They view themselves as on the right side of a fundamental moral battle between good and evil. When engaged in such a battle, the fact that a court has said people have the right to do evil, unencumbered by the behavior of anti-abortion activists, has little sway with true believers. They may regard themselves as comparable to African Americans who chose to sit at white lunch counters despite the fact that laws at the time prohibited this conduct and were deemed valid.
The determination to pass laws that will certainly be struck down by the courts is arguably another form of civil disobedience, one in which the disobedient write laws in the same way as they might cross into a bubble zone to advocate against abortion. People favoring other policy priorities (such as gun control or campaign finance reform) may simply not see themselves in these terms. They want to work through legal channels and as long as courts do not support their project, they aim to elect officials who will appoint judges who will come to see their project as legitimate. It may be that liberals (who favor gun control and campaign finance reform) have a greater faith in the system and believe they can alter the law without directly violating it. Anti-abortion activists see what they view as a Holocaust against the unborn and refuse to work within the system.
Ironically, passing a law seems like the most "within the system" sort of behavior. An advocate is ostensibly working to change the rules that govern our behavior. But in this case, where the law to be passed will almost certainly fail as law, legislation becomes something like civil disobedience, an act of the legislature in defiance of the courts that tell it what it may and may not constitutionally do. Anti-abortion activists thereby reveal themselves to be defiant and prepared to do what it takes to protect their constituents--the unborn. For those who find such actions disturbing, we must hope that it stops at civil disobedience and does not become violence and harassment of the sort that abortion providers confront regularly in their day-to-day practices, as discussed by one such provider, Susan Wicklund, in This Common Secret.
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3 comments:
Part of this seems to be an attempt to push the envelope, to see how far they can go for the courts to accept. We saw this with the so-called partial birth abortion ban passed by Congress. At the time, it was very dubious under precedent. But, O'Connor left the Supreme Court, and it was upheld 5-4.
I do wonder how often those on the left do something like this where there might be some chance of success (let's say under state constitutional law). Like in the 1930s and 1940s, gather some legislatures passed stuff that was dubious under standing precedent, but it was in the process of being changed.
Another matter is many anti-abortion laws are largely messaging anyway. They do have real negative effects but often largely are a way for people (even some who accept abortion in some cases) to flag that abortion is disfavored etc. This is a very important thing for them to do, in part for reasons growing out of religious and moral belief, and they are more willing to press against current doctrine to do so.
I do wonder about examples of that done on the other side. And, maybe there is an argument that it should be done more, especially in the Age of Trump.
Thanks for that interesting post .Beyond quite complicated philosophical and moral and legal issues , we have here a very common phenomenon , quite known in many states in the world :
The legislator , bears the word or the wish of the people . As well , the courts ( or state courts or simple courts , typically it seems , because , they interpret the law and the wish of the people anyway ) . But , what happens , when the constitutional court , typically meant for reviewing the laws legislated , abort the law itself ?? Then, he may become , or may be presented , as the enemy of the people ,enemy of the natural sovereign , the public itself . One can't argue , that the law , typically , contradicts the wish of the public , yet , who can actually , defies apparently the law and the wish of the people :
Only constitutional courts , all , by aborting , the law itself . That is a very nice trick !! by that , by legislating , even knowing that it may be aborted constitutionally , they present the law as the wish of the people , and the judges , as the enemy of the people . Simply delegitimizing by that , judges , and particularly , constitutional courts .
Thanks
Brilliant, Sherry. I've wondered for a while now whether this sort of legislation might be thought of as a sort of pseudo-nullification. The civil disobedience comparison, especially as you elaborate it, now strikes me as better. Thanks!
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