In the wake of the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, different state legislatures will make different decisions on what this column has come to call the “A” word.

Yes, that’s how federalism works.

Does Congress have a role? Those seeking such a role, whichever side of the debate they take, should first explain how Congress – under Article I, Section 8 of the U.S. Constitution – has the power to legislate on the “A” word. Go ahead. We’re listening.

Although Dobbs has more than can fit into any one column, the essence of the court’s opinion – which focuses on the Fourteenth Amendment, is written by Justice Samuel Alito, and is joined by Justices Clarence Thomas, Neal Gorsuch, Brett Kavanaugh, and Amy Coney Barrett – is easy to discern.

Why the Fourteenth Amendment? Because the court – in Roe v. Wade in 1973 and Planned Parenthood of Southeastern Pennsylvania v. Casey in 1992 – based its “A” word holdings on the Fourteenth Amendment.

Alito writes that for a court to establish “a fundamental right,” it “must be ‘objectively, deeply rooted in this (n)ation’s history and tradition.'”

“In interpreting … the Fourteenth Amend-ment() … we must guard against the natural human tendency to confuse what that (a)mendment protects with our own ardent views about the liberty that Americans should enjoy,” Alito writes. The Supreme Court should be “‘reluctant’ to recognize rights that are not mentioned in the Constitution … lest … the Fourteenth Amendment be subtly transformed into the policy preferences of” justices.

“On occasion, when the (Supreme) Court has ignored the ‘(a)ppropriate limits’ imposed by “‘respect for the teachings of history,’” … it has fallen into the freewheeling judicial policymaking … . The (Supreme) Court must not fall prey to such an unprincipled approach. Instead, guided by the history and tradition that map the essential components of our (n)ation’s concept of ordered liberty, we must ask what the Fourteenth Amendment means … . When we engage in that inquiry in the present case, the clear answer is that the Fourteenth Amendment does not protect the right to an abortion,” Alito writes.

“Roe and Casey each struck a particular balance between the interests of a woman who wants an abortion and the interests of what they termed ‘potential life.’ … But the people of the various (s)tates may evaluate those interests differently,” Alito writes. “Our (n)ation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated.”

“Both sides make important policy arguments, but supporters of Roe and Casey must show that th(e Supreme) Court has the authority to weigh those arguments and decide how abortion may be regulated in the (s)tates. They have failed to make that showing, and we thus return the power to weigh those arguments to the people and their elected representatives.”

ı ı ı

In a state such as New York, the hard truth for the pro-life movement is that it lacks the votes – both in the state Legislature and among voters – to make substantial changes.

After all, New York legislators not long ago gave a standing ovation to a bill cutting restrictions on the “A” word. And New York Gov. Kathy Hochul wants the state to pay for non-residents’ “A” words.

New York is no more likely to restrict the “A” word substantially now than Mississippi – home of the law challenged in Dobbs – was to restrict slavery substantially two centuries ago.

Maybe you think that’s a good thing for New York. Maybe you don’t. Either way, that’s how it is, and there’s no prospect of that changing soon.

So should New York’s pro-life movement – if it’s interested in accomplishing something and not just standing for something – perhaps consider taking on only those limited legislative causes where it has its best, or perhaps its “least worst,” chance of prevailing soon, whatever “soon” might mean?

For example, please consider this: Do New York taxpayers really need or want to pay for non-residents’ “A” words?

Or this: To what extent is it right to perform the “A” word on girls – that is, minors – without parental consent?

Or this: Is it right to allow pulling a nearly born baby feet first out of the mother, leaving part of the skull inside the birth canal, inserting a vacuum tube into the base of the baby’s skull, and sucking out the brain, thereby killing the nearly born baby?

Is that procedure at all bothersome?

Beyond limited legislative causes, New York’s pro-life movement might considering trying to change people’s hearts.

Which can be even harder than changing the law.

Dr. Randy Elf’s Independence Day brief in the United States Court of Appeals for the Tenth Circuit is at https://works.bepress.com/elf/167

COPYRIGHT ç 2022 BY RANDY ELF