Likely number of abortions that will be prevented by a strict constructionist replacing Anthony Kennedy: Zero

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By Dan Calabrese

I actually dealt with this in the aftermath of the 2012 election, and many of you mistook what I said for a move to the pro-choice camp.

That will never happen. I believe unborn children are every bit as human as you or me, and deserve protection under the law.

I also believe in strategies to prevent abortions that will actually . . . prevent abortions, not just give pro-life people chest-thumping moments that feel triumphant but don’t really change anything. That’s why I’m hopeful but also somewhat apprehensive about the moment at hand.

It’s entirely possible that the Justice who succeeds Anthony Kennedy could become the fifth vote to overturn Roe v. Wade. But there are a lot of factors that could argue against that, and even if it were to happen, pro-life people who have waited for this moment for 45 years would likely find themselves crestfallen with disappointment over the actual impact on the street.

Let’s start with Roe itself, though. Is it really likely to be overturned?

Keep in mind that the Supreme Court can’t just decide one day to take a vote on whether to overturn Roe v. Wade. That’s not how the judiciary works. They would need a test case, and the test case would have to be so uncompromising that there would be no way they could achieve justice without overturning a standing legal precedent. One such case could come from Iowa, which in May passed a law banning all abortions after a fetal heartbeat can be detected. Many other state laws are more limited, and the Court could probably find a way to uphold them while leaving Roe in place. Why do that? Because a strict constructionist doesn’t go looking for an opportunity to change legal precedent. He rules on the case at hand according to the law.

There is also the question of whether a case like Iowa’s ever even makes it to the Supreme Court, or whether SCOTUS issues a ruling if it does. The Justices could send a case back to a lower court for reconsideration, or simply decline to hear it altogether. There are a lot of ways these cases could be dealt with that don’t touch the precedent of Roe v. Wade.

Then we have to consider whether all five conservative Justices would be willing to overturn Roe. Chief Justice Roberts has shown a reluctance to use the court in an activist manner, and went out of his way to save ObamaCare on the theory that it’s not the job of the Supreme Court to rescue the electorate from its political choices. I’d say it is the job of the Supreme Court to strike down unconstitutional laws, but I’m not the Chief Justice. He is.

But let’s say it does happen. Let’s say Roe v. Wade is overturned. That does not make abortion illegal – anywhere. What it would do is give states the freedom to ban abortion if they so choose. In my aforementioned 2012 column, I discussed why this is not likely to prevent all the abortions pro-life people imagine, and maybe not any at all:

Let’s say that somehow all five conservative Supreme Court justices manage to outlast the Obama presidency, and that in 2016 we elect a Republican president who appoints the fifth vote to overturn Roe v. Wade. Then everything changes, right?

Not really. The only thing that would do is return the issue to the states. Now let’s say for the sake of argument that some states would ban abortions and other would not. (And let’s skip the discussion of the political implications of the battles that would ensue in all 50 states.) And let’s say the pattern of who does what hues exactly to the 2012 electoral map. In that case, you’d have 24 states banning abortion and 26 states keeping it legal. Aha, you say! You just saved babies in 24 states!

I say no you didn’t. What do you think will happen in the 24 states that ban abortion? Pro-abortion groups will raise money, organize transportation, conduct public information campaigns and basically do everything within their power to get women who want abortions to a clinic in a state where it’s legal. Granted, many women wouldn’t even need the help. You live in Indiana, you’re pregnant and you want an abortion? You can be at a clinic in Illinois or Michigan in a few hours.

Don’t think women would make the trip? I think you’re wrong. A woman who has decided to abort a pregnancy has just made what she probably views as one of the most important decisions of her life. You seriously think she’s going to go through childbirth because a half-day trip to another state is too much of a hassle?

I know this is a hard truth for pro-lifers to accept, but when you think about it, it’s hard to deny: Overturning Roe v. Wade would prevent very few abortions. Maybe none. I understand its appeal as a political victory, but as a practical matter, that is all it would be. If your goal is to save babies, your goal would not be met.

What we would likely have is a series of state-by-state, blood/death matches in which every election hinges on the abortion question. Some states would indeed pass bans on abortion, now empowered by the Supreme Court to do so. Do not think for a second that these laws would face no legal challenges. They would. Left-wing judges would find reasons to strike them down, necessitating new challenges that would go all the way to the Supreme Court. In the meantime, pregnant women would travel to states with liberal abortion laws and terminate their pregnancies.

The fight would not be over. The pro-life side would have won a momentary political/legal victory, but almost no abortions would be prevented and the political death match would only ratchet up.

I just hope you know what you’re getting excited about, because the end of Roe v. Wade is not the end of the fight, nor is it the end of abortion. The only way to save these babies is to appeal to the hearts of the women carrying them. If they want to abort, they will find a way. We need to pray that they won’t want to.

Dan writes Christian spiritual warfare novels and does all kinds of other weird things too. Follow all his activity by liking him on Facebook!