Gov. Asa Hutchinson stood on the Capitol steps Sunday and said he would break federal law, and people cheered.
It’s a civil, not criminal, matter. He’ll not be going to jail. He’ll just get sued.
I’d asked Hutchinson about that lawbreaking possibility a couple of weeks earlier at a pre-legislative session briefing for the media.
Did he, as a lawyer seemingly otherwise respectful of courts, believe it appropriate for states to enact anti-abortion laws that clearly violate the operative federal case law of Roe v. Wade, and do so purposely to invite — no, demand— lawsuits that might result in the federal courts approving erosions in the breadth of the application of a woman’s right to choose abortion?
Yes, he said.
He gave a three-fold explanation: First, the U.S. Supreme Court, after Roe v. Wade, had made a medical question, the point of viability at which a fetus might live outside the womb, a factor in the extent of the application of the law granting a woman’s right to choose abortion. Second, that point of viability was an evolving medical determination. Third, the Trump presidency will soon remake the U.S. Supreme Court into one presumably more amenable to weakening, if not repealing, Roe v. Wade.
The courts can’t change case law until they get a case.
Perhaps a dozen factors contributed to the fluke by which Trump got to second place in the popular vote by a margin close enough to let him sneak into a tragic electoral college triumph. One was that the religious right rallied for him though widely disapproving of his boorish personal behavior. That’s because his election would serve the transcendent purpose of saving babies from the slaughter of Roe v. Wade, as the religious right phrased it.
What Hutchinson specifically said Sunday was that he had read and studied the bill by Rep. Andy Mayberry to ban the “dilation and evacuation,” or dismemberment, method of abortion common in second-trimester procedures, which are legal, and would sign it. Such a state law essentially would presume to move the abortion ban, as a practical matter, from the last trimester to the second.
Six states have such laws, but the courts have thrown out four of them on the basis that banning the “dilation and evacuation” procedure effectively bans second-trimester abortions in violation of the prevailing case law that permits them.
Pro-choice advocates will assail the Legislature for passing a bill plainly in violation of federal law and thus inviting the inevitable lawsuit that the state would lose at the needless expense to taxpayers of court costs. And the governor and pro-life advocates will respond that, one, we might not lose anymore, and, two, an unborn child’s life is worth the ante.
Why, then, shouldn’t states enact laws in violation of, say, Citizens United, and invite the federal courts to erode the right of rich people to spend as much money as they want to say whatever they want as secretly as they choose to influence our elections?
States could do that, though the prospects for success would seem much less bright in the dark new era. The terms — money, speech — are not so fluid. They’re certainly not matters of evolving medical research. And the federal courts of the Trump era will no doubt be more friendly, not less, to rich people and their money.
On abortion, pro-choice advocates will counter-argue about the value of a woman’s life. The dismemberment method common to second-trimester abortions can be the safest procedure for, say, a woman impregnated by rape who, for reasons of shame or trauma, fails to seek an abortion until after the 12th week of pregnancy.
No one ever said abortion was an easy issue.
The rally at which Hutchinson promised his tactical lawbreaking heard a speech from a woman named Monica Kelsey. Her story is that her biological mother, at 17, was raped and dumped on the side of the road. She was rescued and later found to be pregnant. She decided on an abortion, but changed her mind at the last minute.
Kelsey’s message is that her life matters as much as anyone else’s. She is an advocate for baby-saving programs for mothers who are victims of rape and incest.
Her message is powerful. But at least equally powerful, of course, is the tragedy to a 17-year-old girl of rape, dumping and impregnation.
The issue is not who is righteous and who isn’t. It’s not what is murder and what isn’t.
The issue, amid a horrible and inhumane circumstance, is this question: If that 17-year-old girl, impregnated by rape and rescued from dumping along the side of the road, had decided to go through that day with ending that pregnancy … should we have permitted her that choice under the law?
I say a hard and thoughtful yes.
Trump, per usual, has been personally all over the contradictory map on this issue during his volatile and ever-expedient political life. But the currently emerging Trumpian legal order could well say no.
Arkansas seems anxious to give it the opportunity.
John Brummett, whose column appears regularly in the Arkansas Democrat-Gazette, was inducted into the Arkansas Writers’ Hall of Fame in 2014. Email him at [email protected]. Read his @johnbrummett Twitter feed.