For Pro-Lifers, Abortion Should Not Be a States’ Rights Issue
This article originally appeared at The American Spectator.
Can we call the being growing in its mother’s womb a human baby? Most mothers do, without thinking twice. But in 2021, the most elite voices in politics and media, the tastemakers and intellectuals, say no — and Americans who disagree must wait until 2022 for the Supreme Court to finally affirm the obvious.
The court offered a glimpse of its position on abortion on Friday, ruling that the Texas Heartbeat Act, which allows private citizens to sue abortion providers for ending a pregnancy after six weeks, may remain in place. The Texas legislature’s clever tactic evades the need for state enforcement, which would violate the seminal 1973 decision Roe v. Wade. A second abortion case that will be decided next year, Dobbs v. Jackson Women’s Health Organization, straightforwardly challenges Roe as wrongly decided. This decision could return the abortion question to state legislatures.
Both cases are welcome and long-overdue challenges to Roe and the 1992 case Planned Parenthood v. Casey, which were decided on faulty jurisprudence. The concurring justices made sloppy arguments about due process, privacy, and the court’s own jurisdiction. But frankly, that doesn’t matter. It doesn’t take a Juris Doctor to know that unborn persons have intrinsic dignity. Even if pro-abortion lawyers made perfect procedural arguments, nothing could justify abortion’s prima facie injustice.
I was fortunate enough to narrowly avoid this injustice. I was born to a single mother whose faith led her to reject abortion and rely instead on the support of a community children’s home. Now, I work as a pro-life advocate and support mothers who face an unplanned pregnancy.
We in the pro-life movement are thrilled that Roe and Casey are being given a second look by our (purported) conservative-majority Supreme Court. But as victory nears, we should be careful not to lower our sights to only making abortion rarer through state-by-state restrictions. Our goal should always be to define abortion as unjust in every state, in every circumstance.
This has always been a dividing line between two types of pro-lifers. One type tries to show how abortion is wrong according to the law or morality of the current year, and suggest ways to limit its practice. Abortion is racist or anti-feminist, they will argue, or they may claim that it is bad for the economy, unconstitutional, or sets a harmful legal precedent. These arguments, like any progressive argument, are content with progress in the form of fewer abortions per year. As long as the number is shrinking, pro-lifers are winning.
Conservative journalist Ross Douthat argues as much in his otherwise excellent article for the New York Times. Thanks to the Heartbeat Act, Douthat points out, “in a matter of months, more than a thousand human beings will exist as legal persons . . . who would not have existed had this law not given them protection.” Speaking on behalf of the pro-life movement, he writes, “that immediate effect, that sharp drop in abortions, is why the pro-life movement makes legal protection its paramount goal.”
But such arguments against abortion are strategically flawed even when they are tactically smart. Abortion should not be subject to positive law; it is core to natural law. If American justice does not recognize the intrinsic dignity of unborn babies and proceed to legislate on that basis, its rulings are not based on reality.
Laws that are not based on reality do more harm than good, even when they save infant lives. States’ rights arguments, for example, such as those made by Rich Lowry, that each state should make abortion legal or illegal, are deeply inhumane. Returning the abortion question to the states does nothing to protect babies in Democrat-controlled states, or stop pregnant women from crossing state lines to obtain abortions. But even more importantly, it affirms those who make the “legal” choice to abort in these abortion-friendly states.
No less than an all-out condemnation of abortion that recognizes the intrinsic dignity of all persons, born and unborn, will shift the culture away from our current prenatal barbarism. Though the Supreme Court has already made a sweeping endorsement of abortion rights in Roe, the best reversal would not be litigation, but legislation. A new constitutional amendment must explicitly define babies in the womb as persons, with the same right to life and protection from violence.
Of course, neither a court decision nor legislation should be necessary. Were we, in the words of John Adams, “a moral and religious People,” abortion wouldn’t be up for debate. But if we must fight, let’s fight to win — not to compromise.
