Georgia recently passed into law fetal heartbeat bill HB481, also known as the Living Infants Fairness and Equality (LIFE) Act. It protects children from abortions as soon as their heartbeats can be detected… a time of about six weeks.
As expected, both sides of the abortion debate are going crazy. This is as close as one can get to an absolute ban without directly contradicting the Supreme Court’s most recent rulings on the subject. Many people are unaware that they are pregnant when the child is only six weeks old.
It also bases the law on the notion of personhood, which is to say that an unborn child counts as an individual person from the moment of conception. One Georgia Representive promoting the bill, Ed Setzler, points this out amidst an opinion piece for the Atlanta Journal-Constitution.
From my verbiage in this piece, it is obvious that I fall on the pro-life side. I wish to say, sadly, that as far as abortion goes I don’t think the Georgia bill matters.
The new law does not, on its face, pass legal muster when compared to the arguments laid forth in prior Supreme Court decisions. It is not meant to. This is a law designed to challenge existing rulings and open the way for a possible overturning of Roe v. Wade.
It has been signed into law specifically because of electoral politics. The Republicans, having promised many pro-life constituents that the reason to vote for President Trump was a bench which would reverse the landmark abortion decision, now feel the need to send a case up the line. After all, the theory goes, with Kavanaugh, the votes are now there for the reversal.
I believe they’re wrong about that. Kavanaugh has already signaled with some of his decisions that he’s not nearly as staunchly pro-life as many expected. That is a key reason why he’s not being championed in the way he was merely nine months ago, while Gorsuch is still being praised. If, in fact, Kavanaugh is the Trump puppet I believed him to be, he may still stand against abortion… not that I believe Trump truly cares about the subject, but he has shown willingness to pander to his base on topics of little concern to him. The calculation of Trump pandering leading to Kavanaugh voting to overturn is not an unreasonable one.
The linchpin for me is Roberts. Roberts is, undeniably, pro-life. He has also shown a broad and consistent tendency to defer to the actions of the Presidency and Congress when those two bodies act in concert, and to weigh heavily public opinion on matters.
This leads to the crux of my concerns: the Republicans, under Trump, have abandoned any effort to persuade independents on the matter of abortion and have instead become as strident as the most aggressive pro-abortion advocates.
For years the Republicans made inroads with public opinion by using developing technology to demonstrate the fallacy of the argument that a child somehow bridged from being a cluster of random cells to a person by leaving the womb. That had, over time, become the default position of the pro-abortion side from the original Roe v. Wade arguments of a sliding, trimester-based development of personhood. The embrace of that position had been a trap, as images of obvious babies through high-end ultrasound shredded the myth.
The problem is that the simple response of “Murderers!” is also a trap. The fact is that there are cases – fewer than ever, thankfully – where there is a physical choice between survival of the mother or survival of the baby. There is also a drift toward a generalized liberalism of the culture. Republicans claim to be standing up against that drift when they mock speech codes and gender dysphoria, but they have been lining up behind casual drug use. They are no longer fighting on broad moral principles but rather on whether they support individual vices.
Considering the high rates of abortion among Evangelical groups, this is uncertain footing for their movement.
Roberts is therefore not the lock that many believe he is for overturning Roe v. Wade. Neither is Kavanaugh, although it is absolutely possible both might do so. What happens then?
That, ultimately, is the reason for pushing this bill.
In 2020, this bill will either be up before the Supreme Court or, less likely, have already been struck down with the Court unwilling to take up the case. The real purpose will then be seen: Ginsberg.
The Republicans intend to run Trump in 2020, and Senators supporting him, on the “Justices” topic again. The argument will be that Trump may have seated a sycophant instead of a pro-life warrior with Kavanaugh, but he will produce another Gorsuch when Ginsberg goes away. And, of course, the Republicans need to have the Senate, or the Democrats will stonewall him from getting a necessary justice.
The Democrats, on the other hand, will run on replacing Ginsberg with another hard-left justice. They will have a tougher time of generating fear, because it will be difficult to convince youth who have never known a time without legalized abortion that it will actually be overturned.
Their best chances will actually be if Roe v. Wade is somehow overturned before the election. That will likely galvanize the voters into a wave Blue election – remember, the Republicans have stopped promoting their successful position of demonstrating the individuality of developed infants in the womb – and may lead to a few new Justices in a freshly “packed” court.