Sacred Cows, Whole Hogs & Golden Calves

Article excerpt

The pro-life movement is bedeviled by three ways of thinking that seriously impede its progress in eradicating the scourge of abortion from our law and our land. The first, which I call the "Sacred Cow" syndrome, is the uncritical acceptance of the opinions of certain legal experts-law professors and others-whose advice is unsound in theory and counterproductive in practice. The second, which I call the "Whole Hog" mentality, is the conviction that nothing short of an outright prohibition of all abortions (except, perhaps, those necessary to save the life of the mother) is ethically acceptable. The third, which I call "Golden Calf worship, is the belief that recognition of the "personhood" of the unborn child-through a Supreme Court decision or a constitutional amendment-will make all (or virtually all) abortions illegal throughout the United States.

I was forcefully reminded of these ways of thinking when I read a report of an interview Charles E. Rice, professor emeritus of law at Notre Dame, gave to a Colorado radio station (KGOV) on December 12, 2006. Professor Rice is an editor of the American Journal of Jurisprudence, chairman of the Center for Law & Justice International (New Hope, Ky.), a director of the Thomas More Center for Law and Justice (Ann Arbor, Mich.), and visiting professor of law at Ave Maria Law School (Ann Arbor). He is regarded as the preeminent legal expert in the pro-life movement by many individuals and organizations, including the American Life League, to whom he serves as a consultant. He is well known for his "purist" views on abortion and his criticisms of "incremental" efforts to cut back on the number of abortions through laws regulating abortions. He is also known for his support of efforts to establish the constitutional "personhood" of the unborn child, either through litigation or by a constitutional amendment. I cite Professor Rice because many in the pro-life movement follow (or share) his views. For the good of the movement, however, those views need to be confronted and challenged.

In his December 12, 2006, radio interview, Professor Rice expressed the opinion that if Roe v. Wade were overruled and the issue of abortion returned to the states, hundreds of laws regulating abortion would have to be repealed before laws prohibiting abortion could be enacted, because such regulatory laws recognize abortion as a lawful procedure. (Professor Rice cited the Indiana informed-consent law as just one example.) But this reasoning does not withstand even a moment's scrutiny, and fails utterly to take into account why abortion regulations were enacted in the first place.

It is a basic rule of statutory construction that, to the extent an earlier enacted law conflicts with a later enacted law, the latter repeals the former even if the later law does not expressly repeal the earlier law. This rule is known as the doctrine of implied repeal. Although state legislatures that intend to enact laws prohibiting abortion may decide to repeal their existing laws regulating abortion, they would not have to do so in order to enact a prohibition. They could simply enact the prohibition-which, under the implied-repeal doctrine, would repeal the mass of laws regulating abortion to the extent that they conflict with the prohibition (arguably, the regulations would continue to apply to those few abortions that were not prohibited under the new law).

Professor Rice may deplore the adoption of abortion regulations because, for the most part, they were part and parcel of legislation repealing pre-Roe abortion prohibitions. Although, as a legal matter, pre-Roe prohibitions did not need to be expressly repealed in order to enact post-Roe regulations, as a political matter the pre-Roe laws may have been repealed as the price that had to be paid for enacting any laws regulating abortion. The regulations were aimed at restricting the "abortion liberty" to the maximum extent allowed by law, and providing a series of test cases for determining and limiting the ultimate reach of that "liberty. …