This June, the U.S. Supreme Court did something which many of us had been praying for many years: It overruled Roe v. Wade. Now, the States are finally free to protect life. But as always, evil finds a way to push back.
Many of us who do legal work in pro-life cases figured that the Biden administration would try to do what it could to legalize abortion through federal regulations. Thus, to nobody’s surprise, the Department of Veterans Affairs recently announced that it would be providing abortions. 1819 News reported this week that the Birmingham VA is preparing to follow through on that plan.
Thus, while abortion is largely illegal here in Alabama, the VA is rubbing federal supremacy in our faces and preparing to kill babies who would have been Alabama citizens right before our very eyes.
Should we shrug our shoulders and just let them get away with it?
Heck no!
After Dobbs, we are in unmarked legal territory, but pro-life litigators are in the research stages of seeing what we can do to fight back. Fortunately, it looks like we have options.
First, I believe our greatest chance of success if we sued would be the major-question doctrine, which caused the Biden administration to lose three times this past term before the Supreme Court. That doctrine holds that when an administrative agency takes action of major social, political or economic importance, then Congress has to clearly authorize that agency to do it. Thanks to this doctrine, administrative agencies can no longer rely on general, catch-all language in statutes to justify their overreach. Instead, if they are acting on a major question, then they must show that Congress has clearly given them the authority to do it.
As far as my research shows, there is no law explicitly authorizing the VA to do abortions. While there are statutes authorizing the VA to provide healthcare for our veterans, the question is whether abortion is healthcare or the murder of an innocent human being. In light of Dobbs, the Supreme Court would clearly hold that this is too big of a question to justify under such basic language as “healthcare.” Thus, if there is no statute explicitly authorizing the VA to do abortions, then I think there’s a good chance that a major-question challenge would succeed.
In my mind, then, the question is not whether the courts would rule against the VA, but rather who could sue the VA. In the legal world, we call this “standing.” It means that not just anyone can bring a federal lawsuit, but only those who have been harmed by the government’s actions. With that in mind, who could bring a suit?
There are several possibilities. The first is a post-abortive woman who was medically injured by the VA’s abortions. While she would most likely have standing, the downside is that you have to wait until after the abortion has occurred.
But the second-best option, in my mind, is a father who wants to keep the baby. After Roe, the Supreme Court held that the father of an unborn baby had no rights and that the decision of whether to abort was solely up to the mother. But since Roe is gone, that rule should fall as well.
So my message to fathers is this: If you are pro-life, find your girlfriend (or wife) pregnant, and she wants to abort, then you probably have the chance to step up and be the father that your baby needs. Our first duties as fathers are to protect and provide. Your child will literally die if you do not act. But since Roe is gone, you have a chance to step in and protect your child. So if you find yourself in that situation, please contact a lawyer. Your child cannot speak for himself, so it’s up to you to be the man, confront the monster, and fight it off.
There are other possibilities too. Grandparents might also have standing, although a father would be better. Additionally, our Alabama Attorney General may be forming a plan. He announced that he will uphold our law against the VA. He has not yet announced how, but it’s standard procedure for an AG to be silent on details as he forms plans.
So from several angles, it looks like we have options. Now, all we need is a courageous Alabamian who has standing to come forward and decide to fight for their child. Please, God: Give us one courageous father who will fight for his children, and bless us in the fight as we take down Goliath.
Matt Clark is the President of the Alabama Center for Law and Liberty, a conservative nonprofit law firm that fights for limited government, free markets, and strong families in the courts. His column appears every Friday in 1819 News. The opinions expressed in this column are those of the author. The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to Commentary@1819News.com.
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