As in the John Roberts confirmation debate, the main question being asked of Supreme Court nominee Samuel Alito Jr. is how he might rule in abortion cases, especially in a case that offers the opportunity to overturn Roe v. Wade.
But anti-abortion groups are reluctant to endorse Alito on such grounds, preferring to focus on judicial theory instead.
Judie Brown, president of American Life League (ALL), said her group supports Alito's confirmation because "we came to the conclusion that he is a strict constructionist. We can understand why he decided what he did, and this is one of the first times we have seen a judge stick to interpreting the law."
Having more justices who interpretnot makelaws "is how we will win" the abortion war, she said.
Peter Samuelson, president of Americans United for Life (AUL), echoed the need for justices who will interpret and not make law.
"We're certainly hopeful that Alito is confirmed," Samuelson said, and he is hopeful that Alito and Roberts "will move the court back to interpreting the law."
But if Alito is confirmed, others say pro-life groups shouldn't prepare the invitations to the long-awaited end-of-abortion party.
"One of the greatest myths being spread in Washington today is the claim that legalized abortion is about to end in the United States," said Kurt Entsminger, Care Net, which supports 900 pregnancy centers across the United States and Canada. "The truth is that Roe v. Wade is unlikely to be overturned any time soon. Even if Judge Alito is confirmed and even if both Roberts and Alito turn out to be votes for overturning Roe, there will still be a 5-4 majority on the Court in favor of upholding Roe," he noted.
But that's still more than one vote from ending abortion, said Entsminger. "Even if the numbers someday allow a reversal of Roe, pro-lifers will be sadly disappointed," he said. "The result of overturning Roe will be that the regulation of abortion will revert to the states. In the majority of states, including the states where most abortions are performed, there is unlikely to be any change in abortion laws in a post-Roe era."
The nomination of Roberts and Alito were still good news for the pro-life movement, said John C. Green, director of Bliss Institute of Applied Politics at the University of Akron. "But remember," he said, "a majority of Americans favor Roe v. Wadeand this includes many Republicans. All this power will allow pro-life positions to advance gradually. But many hearts and minds will have to be changed to seriously restrict abortion."
That's a large part of the reason that groups like AUL have shifted their strategy in recent years from the Supreme Court to state legislatures.
"We think sorting it out in the states is the right path forward," said AUL's Samuelson.
For example, he said, Mississippi has recently passed fifteen different pro-life laws, abortions have decreased more than 50 percent, and six of the seven abortion clinics have been shut down, he said.
"Any law that is incremental that helps protect women and unborn children and shows the injury of abortion is very productive," Samuelson said. "Cultural changes, like an increase of crisis pregnancy centers and incremental lawsthese two things working together will help."
But as a whole, the pro-life community has shifted its focus from legislative efforts like the Partial-Birth Abortion Ban Act of 2003 to changing the courts, said Green. "It will be interesting to see how these new justices respond. The pro-life community will probably file a number of lawsuits to find out," he said.
After all, those state laws do eventually become Supreme Court battles. On November 30, for example, the Court will hear Ayotte v. Planned Parenthood of Northern New England, a case regarding a New Hampshire parental notification law. Soon, the Court may also consider whether Partial-Birth Abortion Ban Act of 2003 is unconstitutional.
The public debate that arises over such Supreme Court cases is part of the process "to change the hearts and minds of Americans on the issue affecting innocent life," said National Right to Life Committee director of outreach Ernie Ohlhoff. The partial-birth abortion debate was particularly "a step forward in the education process of the general public," he said. The group is hoping that another Supreme Court battle over the procedure will do what earlier Court and congressional battles did, as "the mushy middle people were brought into the pro-life position, at least partially."
ALL said the partial-birth abortion ban was a "waste of time" and obscures more important issues like personhood.
But Care Net's Entsminger said it's time for the pro-life community to reconsider any and all of its legislative priorities. Success in reducing abortions will be more likely, he said, if "those who value the sanctity of life begin focusing more on practical solutions that empower women to choose life, rather than political solutions that are perceived as taking away abortion rights. As pregnancy centers increase their outreach, pro-lifers can continue to make a substantial impact in reducing abortion without legal changes."
Copyright © 2005 Christianity Today. Click for reprint information.
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