In my view, bills like HR 1797 should be put on hold until we have a Supreme Court more likely to upend Casey. Given the current composition of the U.S. Supreme Court–and the 9th Circuit decision striking a similar law just last week–it’s hard to believe HR 1797 could provide a successful challenge and instead carries the dangerous possibility of an adverse decision on abortion. The more successful approach would be to mandate non-painful abortion methods past 20 weeks, an approach that fits nicely with Casey and Gonzales v. Carhart, 550 U.S. 124 (2007), and presenting the additional advantage of drawing attention to the fact that abortion destroys a living creature.
Whatever the pitfalls, I’d like to start a list of reasons to support HR 1797 and bills like it:
1. It draws attention to the brutality of abortion methods generally.
2. In drawing attention to brutality, it emphasizes the salient facts of greatest apparent import to Justice Kennedy (see Gonzales), making it more likely than other measures to succeed if it reaches the Supreme Court.
3. It advances the legal theory that states could develop compelling interests in regulating abortion other than the interest in preservation of fetal life.
4. It requires legislators–and potentially the President–to go on the record as opposing a popularly supported ban on abortions performed past 20 weeks.