Saturday, May 18, 2019
Recently enacted abortion prohibitions that apply early in pregnancy raise the question of how to evaluate legislative action more generally. It is often a mistake to focus on just the content of the legislation itself when figuring out what law is made. For that legislation is not itself the law even after enactment. Instead, the law brought into being by any act of legislation is the set of new propositions about the law that are true as a result of the interaction of that newly enacted legislation with the rest of the law.
Suppose, for instance, that a ban on abortions after 6 weeks' gestational age is unconstitutional. If the legislation is unconstitutional, then enacting it into the law does not change the law. It could have other effects, such as enabling lawsuits that enrich lawyers for abortion proponents. Those other non-legal effects are a mixed bag and it would be very challenging to analyze them comprehensively. I'm guessing that if one were able to do so, though, a conscientious pro-life legislator in one of the United States would be acting reasonably either in voting for or voting against such legislation.
If I had to guess, conscientious pro-life legislators voting for these earlier abortion prohibitions intend primarily to move the window in terms of what counts as "mainstream" anti-abortion legislation. If so, they very well might succeed in accomplishing their goal. Assume, as is most likely, that these laws are held unconstitutional by federal district courts, such rulings are affirmed by federal courts of appeals, and the Supreme Court denies certiorari. The law has not changed much, except perhaps around the edges insofar as new judicial glosses in the caselaw might have some exploitable nuggets one way or the other for future fights.
What about the discourse in the meantime? Some of the arguments drawn out by "heartbeat" prohibitions do not apply to later prohibitions, such as at twelve weeks' gestational age, that could more easily be upheld against constitutional attack.