Reactions to the nomination of Judge Brett Kavanaugh to the Supreme Court this week went according to script. Sen. Cory Gardner praised the nominee’s thoughtfulness and commitment to upholding laws as written while Sen. Michael Bennet voiced his concerns about the nominee’s ideology. Although Kavanaugh has written little on abortion, pundits and politicians spent the week speculating about whether he would vote to overturn Roe v. Wade.
Kavanaugh is considered an “originalist” judge meaning he looks to the original meaning of the words of the Constitution rather than reinterpreting them according current norms. Originalists respect Supreme Court precedents, but if a ruling runs afoul of the Constitution, the Constitution will take precedent. Thus the 10th Amendment’s actual words are likely to count more to an originalist than the unwritten inferences, penumbras, and sentiments of fellow jurists.
Also a lot has happened since the U.S. Supreme Court ruled that an unborn child has no rights that a grown person is bound to respect. Advancements in prenatal science have exposed the arbitrary nature of Roe’s trimester system. The human body grows and develops continuously not in three identifiable stages that warrant different legal protections. Likewise, the survival of babies born four months premature means viability, the ability to survive outside the womb, is no longer the clear line Justice Harry Blackmun thought it was. In the not too distant future, medical technology will erase that line altogether; a child will be viable at conception.
Roe was supposed to settle the issue of abortion, but it did not. Americans remain divided; 48 percent consider themselves “prolife” and 48 percent “prochoice” according to the most recent Gallup poll. And 53 percent of Americans believe abortion should be highly regulated or illegal while 43 percent say there should be few or no limits on abortion. Support for abortion notwithstanding, fewer women are having abortions. The number of abortions has declined to 652,639, according to the most recent year for which data are available, a number comparable to 1973 statistics. The number of abortions peaked at 1.4 million in 1990.
After 45 years, Roe v. Wade is overdue for review. But prolifers need to temper their optimism. An overturn of Roe would simply give states full jurisdiction over abortion regulation. Abortion would remain legal in many places. Thus the end of Roe v. Wade would not be the beginning of the end of abortion but merely the end of the beginning of a movement to protect pre-born children and their mothers. While laws that protect human life curtail abortion, a change in culture is needed if we are to guarantee every child her first breath.
Cultural change takes time. While the 13th and 14th Amendments to the Constitution effectively overturned Dred Scott v. Sandford, it would take a century before the nation recognized in law the civil rights of African Americans. It took even longer for a majority of Americans to embrace racial equality. Some people still don’t get it and racism persists. Americans must continue to work to uphold equality.
Similarly, even if Roe is overturned, there will be hard work to do for the foreseeable future. Many prolifers already help pregnant friends, give to pregnancy centers and other community programs for unwed moms, and support adoption, but more help will be needed.
Prolifers must be patient. Ill-conceived personhood amendments will not pass in a purple state any more than the Civil Rights Act would have passed in Congress in the 19th Century. A discomfort with the institution of slavery did not mean comfort with equality. Likewise discomfort with abortion does not mean people will automatically embrace the lives of unwanted children. That will come in time but not right away.
Finally, prolifers must continue to speak up for the most vulnerable but must do so with respect. In order to help people see the humanity of unborn children, we must embrace the humanity of those who support abortion. Good people can have blind spots. We must help them to see rather than condemn them. Persuasion is a journey taken not a battle fought.
The Supreme Court nomination process will be relatively brief, but a longer, harder road lies ahead.
Krista Kafer is a weekly Denver Post columnist. Follow her on Twitter: @kristakafer
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