State Sen. Mark Pody of Lebanon and state Rep. Jerry Sexton of Bean Station recently proposed a bill that would let biological fathers stop abortions. It joins more than 200 proposals restricting abortion that have been filed across several states, and, like most of the others, this bill is probably unconstitutional.
If passed, Senate Bill 494 would allow a person to “petition a court with jurisdiction over domestic relations matters to request an injunction to prohibit a woman who is pregnant with the person’s unborn child from obtaining an abortion.”
It specifies that said person must be able to prove that he is the biological father, though DNA evidence is not required, and that the prospective mother is considering an abortion. That’s about it.
The Supreme Court’s ruling in Roe v. Wade was pretty clear: “For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.” Even in the second trimester, the state can only impose restrictions that protect the mother’s health.
Pody and Sexton’s proposal makes no distinction for trimesters and does not consider the prospective mother’s health, meaning that the law could illegally block a woman from receiving an abortion. In doing so, the bill ignores our judicial branch’s power to regulate unconstitutional legislation.
This subversive tactic of invalidating the law seems to be spreading across the country. Eleven states and nearly 200 cities and counties shield undocumented immigrants by not prosecuting them for violations of federal immigration laws (known as sanctuary jurisdictions). Some law enforcement in New Mexico announced they won’t mandate background checks and other state gun safety laws. Putnam County, Tennessee’s sheriff recently refused to enforce Gov. Bill Lee’s limit on public gatherings.
Historically, such annulment has been used for some of America’s worst atrocities. During Jim Crow, some in the South declined to punish lynch mobs.
But I want to focus on the judiciary. In 1832, the U.S. Supreme Court ruled in Worcester v. Georgia that the government could not remove American Indians from their land. President Andrew Jackson responded, “(Chief Justice) John Marshall has made his decision. Now let him enforce it.” Thus Indian removal continued, culminating six years later in the Trail of Tears in which 18,000 Indians were exiled to Oklahoma. About 5,000 died en route.
Yes, challenges to court decisions need to happen somewhat regularly. Plessy v. Ferguson was a terrible decision that, at the time, was considered reasonable. But as our civilization progressed, it became increasingly evident to more and more Americans that the ruling was deplorable, prompting the Brown v. Board challenge that started the end of racial segregation.
However, Brown v. Board of Education didn’t require a state law that violated the Plessy decision to be passed. Brown only needed to dispute an existing law that was concurrent with the prevailing Supreme Court opinion.
Unlike Brown, Sen. Pody, Rep. Sexton, and all other sponsors of unconstitutional legislation aren’t challenging the Supreme Court’s judgment: They’re flouting its authority. They take Jackson’s approach, pursuing laws that are patently incompatible with federal policy and, therefore, the Supremacy Clause of the Constitution.
In accordance with my expressed convictions, I am not questioning Pody’s or Sexton’s characters; I’m only observing that these particular actions go against order and justice.
I won’t deny that passing over the law can be the moral thing under very particular circumstances, as when northerners rejected the Fugitive Slave Act and freed escaped slaves. But, to use a baseball analogy, the game is generally better for everyone when played by the commissioner’s regulations. If the fans, players, managers or umpires don’t like the rules, they can take it up with the commissioner in winter. As the sports proverb goes, “There’s always next season.”
Every couple of years we can change the government, but the pillar of our republican regime is rigid and slow to heal. If enough people subvert it, the edges are chipped away until that once stalwart pillar stands frail and sickly.
Two years ago I was inspired when hearing a talk from Theo Stamos, the former commonwealth attorney for Arlington County, Virginia. Though she didn’t mention it when she spoke, Ms. Stamos had just lost her reelection owing in large part to her prosecutions under drug possession laws that she herself disliked. That struck me as an act of unique courage: Stamos took a stand for her faith in the system over political benefit and even over her personal policy convictions.
I would encourage those officials who presently disregard the law on the books to take a page from Ms. Stamos: The real struggle is not against our federal-democratic system but with the judgment of those who only fleetingly head our governments.