COUNTERPOINT: Let’s make incremental, achievable, constitutional progress

In 1997, Richard John Neuhaus asked if abortion ends a human life, as pro-lifers firmly believe, could pro-lifers in good conscience remain loyal to the American regime, wherein judges permitted millions of abortions every year? After a great deal of debate, most pro-lifers consolidated around the consensus position of incrementalism. Thus, we should do as much as we could whenever we could as we pushed towards the ultimate end goal of overturning Roe v. Wade.

We achieved that goal in Dobbs, and now we confront a new, similarly penetrating question: Is incrementalism over after Dobbs?

As I wish, work, and pray for a day when every child is welcome in life and protected in law, I believe we should focus our efforts on incremental progress in the states.

A federal abortion ban, likely set at a number of weeks (15 or 20) has two substantial flaws. First, there are real concerns whether it is constitutional. The federal government does not have an open-ended mandate to regulate everything. Its powers are limited to those enumerated in the Constitution. None of those powers obviously covers abortion. When national abortion legislation has been adopted in the past, it was justified under Congress’s authority to regulate commerce among the states. Conservatives have always objected to a broad reading of that clause, which is not grounded in the text or founding era history. Thus, when Justice Clarence Thomas voted to uphold the federal partial-birth abortion ban in Gonzales v. Carhart, he was careful to point out he was only addressing the issue within the Roe framework, and not as a matter of congressional power.

Similarly, in the past three years many conservatives have insisted that regulation of public health is a matter for the states, in contravention of attempts by the federal government to fight the COVID-19 virus. We argued that the feds had no role imposing, for instance, a national vaccination policy. We were right in that stance, and we are equally right to apply the same principle to a national abortion policy.

I want to see abortion ended and every human life protected, but many who share pro-life convictions also believe deeply in federalism as a matter of policy and first principles. Thus, any effort toward a national ban will split the pro-life coalition.

Second, majorities in many blue states will not be ready to accept a nationwide abortion ban, at 20 weeks or any other point. The imposition of a nationwide ban through Congress will inevitably exacerbate calls to abolish the Electoral College, adopt D.C. statehood, “end gerrymandering,” and otherwise mess with our governing institutions to ensure “democracy,” i.e., Democratic control. One frequent critique of Roe was that it imposed a nationwide policy on abortion before the nation was ready for it, such that the decision itself fueled the backlash against it. Pro-lifers should be cautious about making the same error now by imposing a national policy in advance of a national consensus.

I know there are those who will say that the left does not play fairly. The left is not constrained by the niceties of the Constitution or the imperatives of intellectual consistency. Nor does the Left wait for a nationwide consensus before imposing a policy like Obamacare. When it controls all three levers of governmental power, it uses them without hesitation. Fair enough. I understand the sentiment and I share the frustration. And if any cause called for priority among our principles, certainly saving babies would be it. But we are not in such an either-or at the moment. A federal trifecta is at least two years away, and perhaps much further away than that.

This is not to say that federal policymakers have no role to play. Ensuring that federal Medicaid funds do not fund abortions (the Hyde Amendment), that the president does not use federal agencies to harass pro-life activists (as may be surmised concerning the Freedom of Access to Clinic Entrances Act), and that military hospitals do not become abortion clinics are all worthy and important federal efforts we can win on right now. We should applaud and support pro-life members of Congress who champion these and other goals. And I hope ultimately we achieve permanent protection for unborn children with a human life amendment to the federal Constitution.

But until that day, I believe the pro-life movement should keep its focus on the states. We should make solid, incremental progress in every state, achieving as much as we can in each individual situation. This will likely require some retooling of the movement’s institutions, as we shift the focus from winning those offices that appoint and confirm Supreme Court justices to those that make policy and decide cases in the states. And we should never forget the primary objective: changing hearts and minds. Lawmaking can help move culture by exposing people to the pro-life message, but ultimately we need broad cultural consensus on the humanity of the unborn child to achieve lasting legal protections in every state.

Read R. Albert Mohler Jr.’s “What comes now in the great battle for life?” and Katelyn Walls Shelton’s “POINT: “A house divided” yet again.”