“It is long overdue for this Court to return lawmaking to legislators.”
With these words, 184 Members of the US House of Representatives and 44 US Senators called on the United States Supreme Court to reverse Roe vs. Wade, the 1973 decision legalizing abortion.
It was the largest number of sitting members of Congress ever to do so. The occasion was a friend-of-the-court brief they submitted in the case Dobbs vs. Jackson Women’s Health Organization, which will likely overrule Roe.
In another Dobbs brief, 396 State legislators from 41 states made the same request.
For citizens to be motivated to elect and lobby their state and federal lawmakers, they need to know that their lawmakers can effectively create public policy that reflects their convictions.
Legislatures make laws; courts simply resolve disputes – without writing, editing, or deleting laws or Constitutions.
The fact that members of Congress have to run for election regularly stands in sharp contrast to the lifetime appointments that federal judges possess. Justice Amy Coney Barrett explained why:
“It is the job of a Senator to pursue her policy preferences. In fact, it would be a dereliction of duty for her to put policy goals aside. By contrast, it is the job of a judge to resist her policy preferences. It would be a dereliction of duty for her to give into them.” (Swearing-in ceremony)
And yet for the last five decades, the Court has given abortion a Constitutional status – unlike any other medical procedure – and thus removed abortion policy from the democratic lawmaking process.
While on the one hand acknowledging that states have legitimate interests, from the beginning of pregnancy, in protecting life in the womb and the health mothers, the Supreme Court in Roe and Casey (1992) tied the hands of the states by saying they could not prohibit abortion before viability, nor impose any undue burden on a woman’s ability to obtain an abortion.
The lawmakers in their briefs point out that the legislative process is far better suited than the Courts to gather and assess the evidence on how a policy will affect all the people (not just litigants) and to amend that policy accordingly.
Moreover, keeping abortion policy in the hands of the people’s representatives allows them to take account of the many developments in culture, medicine and law that will shape such policy.
Roe and Casey engaged in lawmaking. They drew lines and set conditions on abortion policy nowhere found in or attached to the Constitution.
A positive decision in the Dobbs case is not about the Court setting abortion policy. It’s precisely about acknowledging that such policy-making belongs to lawmakers, and therefore to the people. That’s a step that should be welcomed by both sides of the abortion debate.
For us on the side of life, that is not the final goal. Every child everywhere deserves Constitutional protection at every stage.
But our case is more persuasive, and in a post-Roe nation, that case will be able to shape the law without being abruptly cut off by the judicial edict that abortion is “a Constitutional right.”
Fr. Frank Pavone is the National Director for Priests for Life
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