How Georgia and Alabama are answering Roe. David French writes:
Both Alabama’s abortion ban and Georgia’s heartbeat law contain a key provision — they declare the personhood of the unborn child. This is a vital measure that is aimed directly at a key portion of theRoe v. Wade opinion. Late last week, I had a lengthy phone conversation with state representative Ed Setzler, sponsor of Georgia’s legislation. He said his bill wasn’t “waving its fist at Roe; it’s answering Roe.”
Specifically, he pointed at a provision in Part IX of Justice Blackmun’s opinion, where Blackmun states that if the “personhood” of the baby is established, then the pro-abortion case “collapses.” The late Supreme Court justice was of course discussing the definition of personhood under the federal constitution. Setzler, however, notes that Supreme Court doctrine has long allowed states to expand constitutional liberties. They can establish standards of religious freedom, free speech, or due process, for example, that go beyond the First and Fifth Amendments. They cannot be more restrictive than the federal Constitution.
In the abortion context, this doctrine traditionally has been interpreted to allow states like New York to protect abortion rights beyond the minimal threshold required by Roe and Planned Parenthood v. Casey. Georgia (and potentially Alabama) would be asking the Court to permit them to expand the constitutional liberty of the unborn child and to recognize the distinct human identity of the baby in the womb.
In other words, Georgia and Alabama are saying: “We’ve read Roe, and we’re making the very legal statement that Justice Blackmun says would fundamentally undermine the case for abortion. Under our federal system, we can expand the legal definition of life.” While pro-life Americans can and do engage in good-faith debates about tactics, I prefer the most direct approach. Tell the Court what life means. Make the Court break the federal system once again.
[David French, “Alabama and Georgia Are Throwing Down the Gauntlet Against Roe. Good.“ National Review, May 15]
