The PJ Tatler

Rand Paul’s Roe v. Wade Workaround

In what appears to be a strategy to broaden his appeal beyond libertarians to more traditional Republicans, Senator Rand Paul (R-KY) is promoting a provocative approach to ending legalized abortion. The Blaze reports:

[Paul] is raising money for an anti-abortion organization that plans to push his plan to end abortion without the need of overturning a Supreme Court decision or a constitutional amendment.

Instead, Paul is arguing for using the words of the Constitution and the very language from the Roe v. Wade decision.

… If passed, Paul’s bill would define the unborn as persons protected by the 14th Amendment at the federal level.

Paul argues that the Roe ruling itself opens the door for legislative action if law recognizes the unborn as people, thus protected by the Constitution, because even the ruling did not create the right to an abortion.

Taking into consideration language from the Roe v. Wade ruling which indicates that a future determination of personhood beginning at conception would extend constitutional protection to the unborn, the introduced Life at Conception Act would reinvigorate the several states with the ability to police abortion. The bill would not create a federal prohibition, and explicitly states that “nothing in this Act shall be construed to authorize the prosecution of any woman for the death of her unborn child.”

If passed into law, the Life at Conception Act would effectively neutralize the Roe v. Wade decision without overturning it. Pro-life states would presumably rush to secure new protections for the unborn, inviting a fresh cycle of lawsuits which would inevitably percolate up to the Supreme Court.

That’s where the real drama would unfold. How would the Court rule on a challenge to new state prohibitions on abortion in light of the precedent it set in Roe v. Wade? As Paul sees it, that precedent would ironically support those prohibitions under his new law? To restore abortion on demand, the Court would have to invent some new interpretation.

Of course, inventing interpretations is something the Court does very well, as evidenced by the Roe v. Wade ruling itself. In it, the Court discovered a “right to privacy” which had never previously existed. So the whole exercise might prove futile, depending on the Court’s fickle mood.

(Today’s Fightin Words podcast is on this topic available here. 14:07 minutes long; 13.61 MB file size. Right click here to download this show to your hard drive. Subscribe through iTunes or RSS feed.)