Alabama lawmakers, with the noblest intentions, sought to promote the pro-life cause by passing a law that establishes personhood within the womb. Unfortunately, in practical terms, they may achieve the opposite.
They have given the pro-choice movement additional motivation to elect a Democrat in 2020, who would choose liberal Supreme Court justices that would reaffirm Roe v. Wade — and might even strike down milder abortion restrictions than Alabama’s.
To be fair to Alabama, the state is not alone. As the New York Times pointed out Thursday, both “red” and “blue” states have been rushing to restrict or expand, respectively, access to abortion.
The catalyst: the arrival of a conservative 5-4 majority on the Supreme Court that could overturn Roe v. Wade (even though Justice Brett Kavanaugh, confirmed last year, never committed to overturning that precedent). Alabama’s law simply goes further than most other states have.
The risk is the backlash. Until recently, pro-life activists had the edge. The radical new pro-abortion laws passed by Virginia and New York had delighted Planned Parenthood and left-wing Democrats, but had shocked the conscience of the nation. The idea that a mother could terminate a pregnancy up to — or even beyond — the moment of birth is unacceptable to most Americans. The closer to the due date, the more apparent it is that a fetus is a human being.
But the converse is also true: the closer to conception, the murkier the issue.
To some Christians, who believe that life begins at conception, there is no debate: abortion is murder. But even among believers, there is disagreement. Judaism traditionally holds that while abortion is wrong, it is not murder, and that life begins at some point after conception.
It is difficult to believe that these differences can be resolved — especially by the government, which raises the stakes.
The Alabama law, and others like it, may convince more Americans in the long run that life begins earlier in the womb. But politically, the law shifts the debate from the third trimester, where public support for the pro-life side is strongest, but the first trimester, where the pro-choice position is strongest. It also rules out rape and incest as exceptions.
Put another way: the perceived “victim” is no longer the baby, but the mother — or any woman who could become one.
It is entirely possible that the Alabama law will inspire pro-life voters to march to the polls, who may offset or even overcome pro-choice voters who are motivated against it.
But pro-life voters already had the edge on policy, with a pro-life president and the hope of filling more Supreme Court vacancies with pro-life judges, especially if Trump is re-elected. The new law risks all of that. If there was a time to propose a test for Roe v. Wade, it was after the 2020 race.
Again, much of this is not Alabama’s doing. This is the course the Supreme Court set for the nation with Roe v. Wade, imposing the liberal view of a highly controversial moral subject on the nation as a whole.
Conversely, as the prospect of overturning Roe has increased — however marginally — with Trump’s new Supreme Court appointments, Democrats over-reacted by passing extreme pro-abortion laws. Something like Alabama’s law was almost inevitable in response.
Indeed, the Alabama law proves how wrong Democrats were to argue that the New York and Virginia laws would protect women’s rights; they provoked a reaction that did the opposite.
The same holds true for the Alabama law, however: overzealous efforts to restrict abortion could prove self-defeating.
Given that the nation is unlikely ever to agree about abortion, perhaps the focus of pro-life activists should change from legislation and litigation to persuasion.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. He is also the co-author of How Trump Won: The Inside Story of a Revolution, which is available from Regnery. Follow him on Twitter at @joelpollak.