I asked several legal bloggers to comment on the Right to Life Act. Many responded, but the subject was outside the expertise of most of those I contacted. Fortunately, Glenn Reynolds and Eugene Volokh were kind enough to respond. Neither thought much of the bill.

Reynolds believes this bill would be a waste of time even if it passed and pointed out You're not a "person" for 14th Amdt. purposes until you're born. Says so right in the 14th Amendment.

Volokh stated If it's an attempt to reverse Roe and Casey, it surely won't fly. Since I'm not a lawyer, I had to go look up the Casey case.

This decision has replaced Roe v. Wade as the dominant precedent on abortion in this country. It is long and comprehensive and is probably the best single examination of all the legal perspectives available. The dissents of Blackmun and Scalia are particularly argumentative and worth reading. This case (if not Webster) may represent the closest Roe v. Wade has ever come to being overturned.

Well, I'm convinced it is just a matter of time before Roe v. Wade is finally overturned, but if Reynolds and Volokh are correct it will not be via the Right to Life Bill.

As a generally well-educated person without a law degree, my opinion differs from that of the lawyers. I believe this is worth pursing for several reasons. First of all, many lawyers tend to take the law literally (as they should), but judges do not (perhaps they should, but many judges continue to create precedents such as Roe v. Wade whenever they have the motive and opportunity to do so). If this bill passed, I have little doubt it would eventually appear before the Supreme Court. I looked up the 14th Amendment and note that Section 1 states that All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States. This is why Reynolds made his comment. However, I think this opinion predicts a lack of legislative imagination. Section 5 clearly states The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. Even assuming Judges only enforced laws as written (ha!), Congress could merely naturalize all fetus' of current citizens to give these preborn children legal rights.

However, more realistically, laws created by judicial fiat can be removed via judicial fiat. Given the split nature of our current court, the judicial degree of abortion could be overturned at any opportunity. So I support any bill that will bring the issue before the court.

This is one of the main reasons why I will be voting to reelect Bush despite his fiscal failings. I expect 2 to 3 Supreme Court justices will retire in the next 4 years. Given a Bush reelection and several more Republican seats in the Senate, it is entirely possible that Roe V. Wade could be overturned even sooner than I predicted.

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