Protecting Life: A Practical Way Forward
The Visit to the Nursery by Jean-Honore Fragonard, 1775
“Be ye therefore wise as serpents and simple as doves.” (Mt 10:16)
In the wake of the Supreme Court’s decision to overturn Roe v. Wade, the political landscape around the issue of life has changed dramatically, in ways that might well worry some pro-lifers.
Of course, the left has not abated in its bloodlust to sacrifice the unborn at the altar of unfettered choice. The right, in contrast, has increasingly fled from defending life: from desperate deflection to the tired “leave it to the states” that sounds uncannily similar to the “states’ rights” defense for the toleration of another evil.
But I do not blame these politicians. They are making an altogether rational decision, even from the perspective of defending life. Us pro-lifers must admit that the majority of the American public does not care to defend life through all stages in all circumstances. Nor is it reasonable (the excellent work of pro-life groups notwithstanding) to propose that this will change anytime soon on its own; not in a culture that is increasingly hedonistic and individualistic, not in a country that is so allergic to commitment and responsibility.
What then, is there for us to do?
A principle that is often forgotten today may be of use. It is that the law teaches the people as much, if not more, than the people dictate the law. We can see this very easily in that once-absurd concepts: the redefinition of marriage, the idea of metaphysical transsexualism, etc. have become mainstream by means of a dedicated majority and anti-majoritarian legal fiat.
And contrary to the hand-wringing of the more liberal-minded, there is nothing intrinsically wrong with this process. The “majority” is not infallible. Vox populi non est vox Dei. Just as it would be absurd to oppose the elimination of Nazism, or slavery despite the popular support of each in their respective states, it is wrongheaded to suppose that we ought to privilege elegance in process over the substantial defense of innocent human life.
Our Lord says that He sends us as “sheep among wolves.” (Mt 10:15) If we let our little lambs be slaughtered, would it be any excuse to appeal to an ersatz form of honor, never kept by the wolves themselves, but only used as a cudgel to keep us sheep in line when it suits them? I think not.
As a premise, I will assume that there will not be, in the next several decades, a filibuster-proof majority to pass a national ban on abortion, nor one to pass a national enshrinement of Roe v. Wade. The gridlock polarization of Congress will surely ensure this. I will furthermore assume that the states (in part with the help of laws being amended to limit referenda and bare majoritarian strong-arming) will maintain their laws against abortion, at least a sizeable majority of them.
In this scenario, I can identify at least two major tools at our disposal. But the effective use thereof will require decades of coordination and prudence.
Our first tool is the Comstock Act, which allows the federal government to restrict the transport of abortifacients. {The simple “best reading” of this law clearly includes abortion, so there is no need to go into the Executive branch’s interpretive authority post-Loper Bright.} This is not a complete solution, and one that could spark legislative backlash if used imprudently. It is therefore sensible to use this step-by-step, for certain drugs, for certain states, for certain circumstances. Perhaps it could even be used to create procedural hurdles.
The media response, of course, to any such move, no matter how incremental, will naturally be absolutely hysterical. This may hurt in the short-term, but it really only burns their own credibility in the long term. The sky can’t fall twice—and so someone who says the sky is falling (again) will lose credibility with each successive iteration.
Which, perhaps, would assist in our second, long-term mission: correctly interpreting the 14th amendment to include the unborn.
I will not belabor the point of legal interpretation but to say this. Under any of our currently-applied theories of jurisprudence, be it original public meaning originalism, a broader, more purposivist originalism, or any variety of the new common-good constitutionalism, there is a clear and reasonable argument that says that “no person shall be deprived the equal protection of the laws” means that states cannot arbitrarily exclude the unborn from the protection of homicide laws.
Two pragmatic steps are necessary for this interpretation to become law. We must ensure that it is an accepted, or at least known, interpretation among law students and young professionals in the conservative legal movement. And we must vet our Supreme Court picks well. We cannot afford to have any more Souters.
If this should ever come to fruition, there will, of course, be backlash. But there was backlash with Dobbs. There was backlash with Trump’s election. There was backlash with Senate wins and Congressional wins and Supreme Court picks and decision—too many to name. All that I have learned from so much backlash is that sentimental backlash from the left-wing, with a dollar-fifty, used to be able to buy you a coffee. Now it’s more like three.
In the meantime, pro-life activists must maintain a hard, purist line—to keep the truth of the pro-life message firmly within the national conversation (the so-called Overton window). Political candidates at the federal level can de-emphasize the issue, understanding that it is hardly in their hands anymore. They may even say such platitudes as “it’s a state issue” in order to defang left-wing efforts to codify Roe into federal law. In other words—to return this issue to its pre-Dobbs state vis-a-vis immediacy. So long as they remember the end goal: to save all unborn lives from this tragic violence committed against them by those who should love them most.
I know full well that few will ever read this. But I hope that pro-lifers more influential, more knowledgeable and more experienced than myself devise a forward-thinking strategy to end, once and for all, the atrocity that my children’s children (I pray) will look back upon with horror.
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