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What Would Happen if a State Nullified Roe and Abolished Abortion?

by James Silberman Read Profile arrow_right_alt

This article was co-authored with Jason Storms, Associate Pastor at Mercy Seat Christian Church in Milwaukee and Assistant Director of Operation Save America.

Bills criminalizing abortion as murder and rejecting the authority of the courts to say otherwise have been introduced in the state legislatures of Oklahoma, Indiana, Texas, Idaho, and Washington.

Due to errant Constitutional understanding, most Republican and pro-life leaders oppose such bills, calling them unconstitutional. They claim that Roe v Wade is the law of the land and, while they want to stop the killing, unconditional submission to whatever the Supreme Court says is required of them.

This sentiment is terribly mistaken. We’ll address it quickly before moving on to the primary concern; namely, what would happen if a bill abolishing abortion were passed and signed into law? Would Oklahoma or Texas be able to successfully enforce it?

Can We Lawfully Resist the Courts?

First, let’s examine the Constitutional question. Is the Supreme Court infallible in its opinions? Must they always be obeyed? Earlier this month, Daniel Horowitz at Conservative Reviewposed the question to conservatives: “If a judge ordered Trump to resign, would that be the law?” He detailed the many ways in which the lower courts are, in effect, giving Barack Obama a third term by treating his executive actions as if they were the Constitution itself. He proceeded to ask conservatives whether there was a bridge too far that the courts could possibly cross at which point conservatives would take action.

If the last half-century is an indicator, the answer is no. Conservatives have been willing to tolerate any opinion from the the courts, up to and including rulings that have directly caused more than 61 million killings.

How about the Dred Scott ruling, where the Court stated that black men and women are not people but are property?  How about the Buck decision in 1927 in which our (in)justices declared that the Federal government could sterilize Americans against their consent? As Justice Oliver Wendell Holmes opined, “Three generations of imbeciles is enough.”

Such rulings as these are wrong, and further, they are evil. Are the states and the people bound by them? Writing to early judicial supremacist Charles Jarvis, Thomas Jefferson addressed this exact question.

“You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps…. Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.”

The courts are often wrong. They are often absurdly wrong. Fortunately, they’ve not been given the authority of a single tribunal with ultimate power over constitutional interpretation. When they abuse their office, it is both the right and duty of the other branches of government, as well as state and local governments, to check them. This has not been happening for over 100 years, thus the secular progressives have effectively used the rogue courts as their vehicle to circumvent our democratic processes and impose their ideology upon the states. As Pastor and author Matt Trewhella has said, the courts have created “social transformation without representation.” Appointing conservative justices has done little to reign in these abuses as generations have been taught a false understanding of judicial supremacy, ingraining the idea even in most conservatives.

There have been and presently are many examples of state and local governments applying proper checks and balances to the abuses of the Federal government. Many northern Statesdefied both Federal court opinion (Dred Scott) and Federal Law (the Fugitive Slave Act) 150 years ago. We celebrate them as heroes for their courage. In fact, this was the soil from which the Republican party sprung into being.

Today, over 20 states are now defying Federal law over recreational marijuana usage. The Federal government under both Trump and Obama has stood down and not enforced those federal prohibitions. Other federal action on issues ranging from immigration, to health care, to environmental regulations, to gun control have already been nullified in numerous states with very little push back from D.C. Would the feds do the same if a state defied Roe and asserted their state sovereignty to protect innocent human beings in the womb? We don’t know.

We do know that pro-life Republicans currently have total control of 22 States – total control meaning they have majorities in both the State House and Senate as well as the Governor’s mansion. What if every pro-life politician and every pro-life leader in these states were to act like babies are being murdered, would reject this false notion of Judicial Supremacy, and would end abortion in their states? The Feds wouldn’t be able to do a thing in the face of 22 States defying them. This would be the end of Roe and might usher in the end of judicial supremacy altogether.

Almost one million babies have been killed in those 22 pro-life states just during Trump’s tenure thus far, but, alas, our pro-life leaders do not think killing babies is a big enough deal to warrant standing up to the court.

Or maybe many of them simply think it is wrong to only “save some” and would rather do nothing until they can “save them all” by overturning Roe or passing a Constitutional amendment at the national level?  I think it makes more sense to try to save those we can at the state level.

If Roe is overturned, great. The court has an obligation to right its wrongs, but we needn’t wait for the court’s permission to make murder illegal. God’s word and the Constitution command us to uphold the right to life, regardless of the opinion of any earthly judge. “I was just following orders” was no excuse for mass murder enablers of the past and it’s no excuse now.

What Will Happen?

A state ignoring Roe and abolishing abortion would have both legislative chambers and the governor committed to the cause, and they would be unable to pass such a bill if a large and active portion of the population weren’t on their side. With these things in place, a state could very much succeed in ending abortion.

Almost 80% of the citizenry in Oklahoma profess to be pro-life. Even most Democrats are afraid to support abortion. Only two of 29 State House Democrats voted against Oklahoma’s dismemberment abortion ban in 2015. 15 excused themselves from the vote and 12 voted for it. The people would be behind an effort to end abortion in the state. It would be extremely difficult for the federal government to squash the will of nearly an entire state standing unified against it for a just cause.

That doesn’t mean the feds under the leadership of a Democrat wouldn’t try. A Democrat President would likely withdraw federal funds. States like Oklahoma or Texas which pay more in than they get from the Feds should not be intimidated by such a threat.

It’s conceivable that a Democrat President would put boots on the ground to physically keep the killing centers running, but unlikely. To defy the will of the people of Oklahoma, Indiana, or Texas in order to keep a murder legal would be a serious black eye for the federal government.

A potentially more significant threat would come from corporate America. Many companies would threaten to boycott, music artists would cancel shows, late night comedy (the word “comedy” being used loosely) would ridicule and lampoon and foam at the mouth. This kind of pressure has caused conservative leaders in the past to fold on lesser matters.

The ability of big business and celebrities to blackmail states is waning, however. In the face of massive Hollywood boycotts,Georgia passed a pro-life bill. Consequently, Governor Brian Kemp’s favorability ratings surged. Not only do Republicans benefit politically from standing up to the elites, Newsweek‘s Peter Roff pointed out, in a well-done piece, how much leverage states actually have against Hollywood if celebrities continues to pick fights.

Two things would be imperative for success in defeating the feds and boycotts. First, strong, courageous leadership from people capable of articulating the moral and legal issues effectively and unflinchingly in the face of threats. Abortion is murder. In a state that’s 79% Christian, it’s not difficult to rally people behind the cause of abolishing murder. All that’s needed is someone to rally the troops. As 2016 Oklahoma abolitionist gubernatorial candidate Dan Fisher put it, “I believe that a state must stand squarely and firmly on its principles [of abolition] and let the chips fall where they may, and I would like to believe that reason and right would simply prevail.”

Secondly, if one state were to take this bold action its success would to some degree depend on whether other states joined them. If five or six states immediately followed Oklahoma or Texas, this coalition would make targeted boycotts and financial sanctions or even physical force by the Federal government impossible to effectively execute.

The question, then, is would other states follow? The biggest impediment to a state abolishing abortion is that the courage needed is not possessed by most politicians. But once they see someone else lead the way, many conservative politicians and states will be likely to follow. Not only that, but Christians across the country will see the action taken by the politicians of the first state to abolish abortion and demand the same from their own legislators.

Admittedly, enforcement could be messy. The small number of radical pro-abortion folks in these states will gnash their teeth. This will be the case no matter how abortion ends, however. Their blathering shouldn’t be countenanced. Their primary accomplishment will be showcasing to the sane Americans how nasty they are. The majority of the citizenry in these states would go on with their lives unaffected.

There might be tension between city and state officials if district attorney’s or mayors refuse to protect the right to life. A battle for authority is sure to follow. Fortunately, we have the law of the Constitution and the Supreme law of God on our side. As Fisher said, our responsibility is to do what’s right, letting the chips fall as they may.

That implementation mightn’t be seamless in some cases is no reason not to abolish abortion. Many laws are difficult to enforce and just about all laws fail to completely eliminate the occurrence of the crime they outlaw, yet these laws remain a great deterrent to these behaviors and bring justice to many.

The law is a also powerful teacher. Abolishing abortion would send an instructive statement to young and old that little lives matter – that killing an image-bearer of God is murder and should be treated as such. Thousands of babies would be saved. After 46 years of unmitigated bloodshed, justice will finally be established.

Women would not be dying in the streets. They were not pre-Roe when many clinics and hospitals performed illegal abortions. The coat-hanger abortions were largely pro-abortion propaganda, lies which NARAL’s co-founder later admitted to.

Women would not fall into a health care crisis. Just as in Ireland, where women arehealthier than in America even while abortion was illegal there for decades, women’s health care would be just fine without legalized abortion in these states.

Clearly, there remains much educational work to be done to garner enough support and understanding of these ideas. But we will never effectively educate or mobilize people if we do not begin talking about these things and forcing the discussion. That is precisely what these bills are doing.

As long as we are content to introduce bills instructing doctors on how to perform abortions safely or only up to a certain arbitrary point and call that winning, we will never get to where we all claim we want to be – a culture grounded in the idea that human life has inherent value and that provides equal justice for every image-bearer of God.

Here’s the blueprint for ending abortion in a pro-life state: Draw a line in the sand. Declare abortion to be what it is – the murder of an innocent human being made in God’s image. Only support legislative efforts that will lawfully criminalize all abortion in defiance of the lawless Roe opinion. If such a bill does not exist, begin meeting with legislators and like-minded folks in your city to get one drafted and introduced. Accept nothing less from your political leaders, give them no opportunity to do less than their lawful duty. Educate pro-life people in the cause of abolition and interposition, persuade hearts and minds, and mobilize support for the total criminalization of abortion in your state.  For the sake of the nearly one million preborn humans who will be murdered this year, let’s get to work.


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