October 12, 2007

Last week I wrote, “We in the pro-life movement have got a decision to make. If this were a football game, it would be the fourth quarter with one second on the clock. We, the Lifers, trail the Choicers by three points. We’re on their goal line. It’s fourth down. And, it’s the Super Bowl. Do we go for the field goal and the tie, in hopes of sending the game into overtime? Or, do we run a play and go for the touchdown and the win?”

Well, I’ve now made my decision. I’m going to kick the field goal because we’re not on their goal line—we’re on their 30-yard line. And, the smartest head coach in the country says we don’t even have a play that can get us into the end zone. We’ve got to kick.

In follow up to that column considering a Human Life Amendment, I spoke with perhaps the most knowledgeable and experienced pro-life attorney in the country, James Bopp, General Counsel with the National Right to Life. Here’s what he had to say:

Frank Pastore: As the General Counsel of the National Right to Life (nrlc.org), what about the strategy from the Thomas More Legal Center, passing or encouraging a Human Life Amendment, right now in Georgia, thanks to the Georgia Right to Life, and maybe fighting that all the way up to the Supreme Court? What do you think of that strategy and that approach?

James Bopp: Well, unfortunately, I think it could lead to a really unmitigated disaster for the pro-life movement. Five justices of the Supreme Court have already voted to reaffirm Roe v. Wade, and they are closed minded on that issue. And, if we push the Court by putting a prohibition up there things might actually get worse. Last term, the U.S. Supreme Court agreed to uphold the federal partial birth abortion bill. But, you’ve got to read the four-member dissent in that case, written by Justice Ginsberg, who is prepared to change the law radically on abortion to make it an absolute right to an abortion, by finding the right to an abortion as a matter of gender discrimination.

A number of state courts have, unfortunately, used that equal protection gender discrimination argument to strike down laws limiting funding of abortion, informed consent and parental notice. In other words, the theory that restrictions on abortion are essentially sexual discrimination means that all restrictions, all limits, including limits on funding of abortion would be struck down. And, we would push the Court into at least a four member plurality written by Justice Ginsberg that would say the matter of abortion is not a matter of privacy but a matter of gender discrimination which would then be used against all current limits on abortion.

Pastore: So the short answer from the National Right to Life is that it is not worth the risk right now.

Bopp: It is premature.

Pastore: It is premature in that we should wait for a more opportune time to go with a case to the Supreme Court to overturn Roe v. Wade?