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Kagan, abortion, and the Supreme Court’s coming moment of truth on Roe v. Wade

A new Nebraska abortion law could make its way to the Supreme Court. Instead of using evolving medical science to redefine when life begins, the court must hold that the due process clause’s primary guarantee of life make abortion unconstitutional.

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This dilemma forced the court to make a decision between two principles that were originally understood to work in conjunction with one another but were now found to be mutually exclusive – that of equal protection or that of segregation. In Brown v. Board of Education (1954), the court rightly chose the guarantee’s primary purpose of equality over its secondary understanding of segregation.

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Ironically, the court’s continuous quest to redefine life in the face of evolving modern science has shown how futile a task it has become. Litigation over whether life begins at the third trimester, viability, or when an unborn child can feel pain has shown that the Constitution's due process guarantee of life has two originally understood but now mutually exclusive principles – life and abortion.

Faced with this reality, the court must now choose the due process clause’s primary guarantee of life over its secondary understanding of abortion and thereby hold that all abortions, with one exception, are unconstitutional.

That one exception should be if the life of the mother is at risk. While it may be noble for a mother to choice to sacrifice her life for her unborn child’s, the state cannot force her to do so.

Under the 14th Amendment, the federal government would have the power to enforce this constitutional ban on abortion, including deciding who and how to punish. While theoretically they could punish both the abortion provider and the mother, prudence and public opinion would only support the former. Additionally, while the “morning after” pill would be prohibited, other forms of birth control would be constitutional.

Obviously, a Supreme Court declaration that almost all abortions are unconstitutional would not end the practice overnight. The battle over abortion is not simply one of constitutional law, but also one for the hearts and minds of American women. It will have to be waged through compassion and support for women struggling with unwanted pregnancies, as well as continued education efforts to inform women of alternatives to abortion.

The late Sen. Ted Kennedy (D) of Massachusetts once denounced an originalist America as one “in which women would be forced into [unsafe] back-alley abortions.” While it is true that in the year before Roe 39 women died after having undergone illegal abortions, research has shown that most of those deaths could have been prevented with the use of modern antibiotics. To ensure that women will not die from botched illegal abortions, our hospitals must always remain open and welcoming to them.

Certainly any decision reversing Roe, much less one holding abortion unconstitutional, would make an already contentious issue even more volatile. Absent a constitutional amendment, however, only the court can resolve the debate it started, and it should take the case of Nebraska’s newest abortion law to resolve it in favor of life.

Nathan W. Tucker is an attorney in Davenport, Iowa, and the author of “We The People: The Only Cure to Judicial Activism.”

[Editor's note: The original version of this essay misstated the year Brown v. Board of Education was decided.]