Roe v. Wade—Nullification is the “Rightful Remedy”

Being “pro-life” means a person opposes abortion. But while the pro-life movement seeks to change hearts and minds about abortion, the ultimate goal of the movement is to make abortion illegal. Abortion doctors murder babies, and they should be prosecuted for the crime. How can the pro-life movement bring about the legal prohibition of abortion?

The most common hope today is that the Supreme Court will overturn Roe v. Wade (1973), which would return the issue of legality to the states. This is certainly something to hope for. However, it has been over 44 years since Roe, and the Court has yet to overturn its decision, even with a “conservative” majority. Part of the problem is that many justices give deference to past rulings (stare decisis), whether they agree with them or not. This is not to say the Court has never overturned prior rulings. It just means that there is a major hurdle to overturning Roe.

All of this is to say that pro-lifers should not put their ultimate hope in the Supreme Court but should look to other means for outlawing abortion. The absolute best option is an amendment to the Constitution that requires every state to prohibit abortion. Of course, a constitutional amendment is hard to pass. It requires either two-thirds of the Congress or two-thirds of the state legislatures to call for a convention to propose an amendment, which must then be ratified by three-fourths of the states (>U.S. Constitution, Article V). Given the current divide over abortion, it is unlikely that 38 states would agree to such an amendment.

So can anything be done to stop the slaughter of innocent children in the United States? Yes, the answer is nullification (sometimes called “interposition”). States can nullify Roe v. Wade by declaring it unconstitutional and enforcing state laws on the books that criminalize abortion (or pass new ones).

Roe Is Unconstitutional—and Immoral

The first point to make in support of nullification is that the Supreme Court’s ruling in Roe v. Wade was entirely unconstitutional. The Constitution was designed to grant limited powers to the feds, as defined in Article I, Section 8. Every other power was reserved to the states, as the Tenth Amendment makes clear—“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” The Constitution does not delegate the regulation of abortion to the Federal Government. Therefore, abortion regulation belongs to the states. This was the situation prior to Roe, where the vast majority of states had some sort of restriction on abortion.

In Roe, the Supreme Court ruled that the Due Process Clause of the Fourteenth Amendment guaranteed a woman’s “right” to privacy and that the states could not regulate abortion until after the first trimester of pregnancy. In addition to the invention of the arbitrary “trimester,” the Court in Roe merely asserted the “right” of abortion in the Fourteenth Amendment—but it did not substantiate it. The Court has used the Due Process Clause as a loose catch-all phrase for justifying every justice’s preferred value system, from legal abortion in Roe to same-sex marriage in Obergefell v. Hodges (2015).

It is no wonder that Roe was met with a bold dissent from Justice Rehnquist: “To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment.” Even progressive legal scholar John Ely condemned Roe—“because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.”

Roe was modified by Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), which ruled that states can regulate even first trimester pregnancies so long as they do not impose an “undue burden” on the woman. However, though the protections of Roe have shifted, its ruling that abortion is a “right” has never been overturned.

But Roe is not only unconstitutional; it is also deeply immoral. The Court in Roe legalized abortion in all 50 states and declared abortion to be a “right” guaranteed by the Constitution. But if abortion is murder—and it meets the definition of the purposeful and unjustified killing of human life—then the Supreme Court ruled that American women have a “right” to murder their children.

It is important to emphasize that overturning Roe would not criminalize all abortion, a fact that will relieve defenders of legal abortion. That is to say, overturning Roe would not be the end of the pro-life movement. Overturning Roe would simply return abortion to the states—its rightful place constitutionally. Thus if the Supreme Court overturns Roe or if states nullify Roe, it will put states in a position where they can enforce the laws on their books, many of which criminalize abortion (or states can pass such laws).

Nullification is the Only Available Check on the Supreme Court

The absurd ruling in Roe v. Wade should serve as evidence that the Supreme Court has abused its authority. There is a long history of the Supreme Court expanding its power, which has been fueled by the fact that there is in all practicality no check on the Court. Congress has the power to remove unfaithful Supreme Court justices, including for unconstitutional rulings—but it has never done so. The closest Congress came to removing a Supreme Court justice was in 1804 when the House of Representatives impeached Samuel Chase for prejudicial behavior, but the Senate acquitted him. This led Thomas Jefferson to conclude that removal of Supreme Court judges is “an impracticable thing, a mere scare-crow.”

The unchecked Supreme Court went on to claim a monopoly on constitutional interpretation, seen not only in its proclaimed right of “judicial review” to veto congressional legislation in Marbury v. Madison (which was expected), but also in its proclaimed right to veto state laws and state courts in Fletcher v. Peck and Martin v. Hunter’s Lessee (which was not so expected). Unfortunately, instead of checking Congress, the Supreme Court has focused its attention on striking down state laws it does not like. The Court has thus undermined federalism and states’ rights, along with the Constitution it is bound to uphold.

Why do nine unelected judges get to reinterpret the Constitution so as to prevent states from criminalizing abortion? Such a practice takes the issue out of the hands of legislatures and voters and is therefore undemocratic and un-republican (and thus un-American). And there is nothing people can do about it—except nullification.

The only possible check on the Supreme Court (and the Federal Government as a whole) is state nullification. The states, the fourth branch of the government, are the parties to the constitutional compact that created the Federal Government (often called the “compact theory”). As such parties, the states have the right to interpret the Constitution and challenge unconstitutional laws and rulings made by the Federal Government. When a state nullifies a federal law, it interposes on behalf of its people before the Federal Government.

Nullification Works—South Carolina and Marijuana

Nullification has its roots in the Virginia and Kentucky Resolutions of 1798 and 1799, which were written by James Madison and Thomas Jefferson (anonymously at the time) in response to the Alien and Sedition Acts of 1798. The Sedition Act was the most controversial because it criminalized speech that criticized President Adams. The Resolutions described the unconstitutional Acts as not “valid” (Virginia) and “void” and “of no force” (Kentucky).

The Virginia Resolutions of 1798 said that in response to unconstitutional legislation the states have the duty to “interpose for arresting the progress of evil.” The Kentucky Resolutions of 1798 explained that the Constitution’s interpretation cannot be left exclusively to the Federal Government because that would make the Federal Government superior to the Constitution:

the government created by this compact [the Federal Government] was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself (Resolution 1).

Jefferson’s draft of the Kentucky Resolutions of 1798 was most explicit—“where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy” (similar language was used in the Kentucky Resolutions of 1799). By “nullification” Jefferson meant that the other states should not only “concur in declaring these acts void and of no force” but also that each state should “take measures of its own for providing that neither these acts, nor any others of the general government, not plainly and intentionally authorized by the constitution, shall be exercised within their respective territories” [emphasis added].

In other words, Jefferson was calling for state obstruction of unconstitutional federal laws. This was carried out in practice by South Carolina during the Nullification Crisis of 1832-33, where South Carolina called a state convention that nullified the 1828 “Tariff of Abominations.” South Carolina then obstructed the collection of the tariff. President Andrew Jackson in turn threatened to send in the army and hang John C. Calhoun, but this was not a popular move on his part. Ultimately, South Carolina’s efforts were successful because Congress reduced the tariff.

However, nullification is not just an antiquated doctrine of the early 19th century. A modified form is working today where states refuse to enforce federal laws (what is sometimes called “neo-nullification”), made possible by the Supreme Court’s anti-commandeering rulings (New York v. United States and Printz v. United States). The most popular example of this practice is found in the state legalization of marijuana (both medical and recreational). Of course, neo-nullification efforts do not usually denounce federal laws as “unconstitutional,” nor do they seek to obstruct federal enforcement of those laws within the state. However, the success of neo-nullification demonstrates that there is a path to successfully opposing the Federal Government.

Nullification is Consistent with Calvin’s Doctrine of the Lesser Magistrates

State nullification has philosophical roots deep in the history of Western civilization, particularly in the Protestant Reformation and John Calvin’s doctrine of the lesser magistrates. Calvin taught that a “lesser magistrate” (such as a prince) has the authority to rebel against the tyranny of a greater ruler (such as an emperor). While Calvin believed that Christian citizens must submit to governing authorities, he also taught that there are “popular magistrates” who “have been appointed to curb the tyranny of kings.” These lesser magistrates are the “appointed guardians” of “the liberty of the people” (Institutes 4.20.31). This doctrine was advocated by other Protestants, including Lutherans in the Magdeburg Confession (1550) and the Scottish reformer John Knox.

State nullification is the modern-day application of the doctrine of the lesser magistrates. The United States are republics and therefore do not have princes or kings. However, states do have elected officials, such as governors and legislators. In our system of federalism, state officials can function as “lesser magistrates” in relation to the Federal Government. Therefore, a state legislature can call a convention where the state nullifies unconstitutional laws and interposes between the people and the Federal Government. The people of the state can pressure the legislators to call such a convention, and they can vote out legislators who refuse to support one. All of this is possible because states, being smaller political bodies, are closer in representation to the people than the Federal Government (which is run by bureaucrats in Washington D.C.).

States Should Form Conventions and Nullify Roe

One way to practice nullification is by calling a state convention. This is how the states ratified the Constitution, and this is what South Carolina (whose nullification campaign was successful) did during the Nullification Crisis of 1832-33. The fact is that nullification works. When a state confronts the Federal Government, it pressures the Federal Government to change its laws.

It is uncertain how the Federal Government will respond if a state nullifies Roe. The threat of military action against a state would be a PR disaster, so the most likely response is the attempt to pull state funding. But this may be challenging for the Federal Government because the funding must be related to the regulation at hand. And even this may not happen depending on the disposition of Congress and president. Nullification carries risk. But the risk is worth it, especially when it comes to the protection of innocent life. States must interpose on behalf of their most defenseless citizens.

It is also possible that if one state acts courageously and nullifies Roe that other states will join in the effort. When this happens, nullification becomes a force to be reckoned with. This is what is happening with states legalizing marijuana, as the Federal Government is fighting a losing battle. The time is ripe for nullification efforts. Decentralization and the assertion of states’ rights are gaining popularity, and this presents a prime opportunity for the nullification of unconstitutional laws and court rulings by the Federal Government—in this case abortion.

State legislatures should therefore begin to call conventions and nullify Roe v. Wade. The ruling is unconstitutional and immoral. Moreover, the pro-life movement is winning in popularity, and nullification efforts aimed at Roe could gain widespread acceptance. We cannot sit around and wait for the Supreme Court to overturn a 44-year-old decision. It has already been too long, and there have already been far too many babies slaughtered. When it comes to Roe v. Wade, nullification is the “rightful remedy.”