….There have been six post-Dobbs popular referenda on abortion. All were setbacks for life. The sites of these defeats included red states such as Kansas, Kentucky, and Montana, as well as purplish Michigan. (The others were California and Vermont. No surprises there.)
It is not just the people who have gone wobbly on abortion. Republican politicians were all saber and musket when Roe put the substance of abortion liberty beyond political reach. Now it’s different. Lindsey Graham introduced in the Senate last September a bill that would nationally prohibit abortions after fifteen weeks of gestation, except in situations involving rape, incest, or risks to the life and physical health of the mother. This was hardly a drastic proposal: Almost 95 percent of abortions take place by fifteen weeks, and Graham’s bill permitted some abortions thereafter. His Senate colleagues nonetheless had no stomach for the fight. From leader Mitch McConnell on down, Republican senators took the view that abortion was for the states to worry about. They preferred to run against inflation and an underperforming economy. Pro-lifers are now working hard to gain commitments from Republican presidential hopefuls to support a national ban modeled after Graham’s bill. We shall see how that goes.
Republican legislators are not the only problem. There is another cadre of public officials now driving the abortion express. High courts in blood-red states have struck down restrictive abortion laws; South Carolina and Montana are two examples. High courts in Wyoming, Florida, and Indiana are sitting on lower-court decisions blocking enforcement of those states’ restrictive abortion laws. We shall see what the top judges in those states do….
What, then, is to be done? We should keep trying to reach the hearts and minds of opponents, of course. At the same time, justice for the unborn calls for the use of whatever lawful power is at hand to save their lives. Is there some paramount legal authority that could be put to this use?
Congress possesses ample constitutional authority under Section Five of the Fourteenth Amendment to “enforce, by appropriate legislation” the Section One guarantee that no state “deny to any person within its jurisdiction the equal protection of the laws” against, for example, homicide. Maybe soon there will be a Republican Congress. But as the fate of Lindsay Graham’s very weak protections of the unborn indicates, it is not likely to be a pro-life one.
The people could of course amend the Constitution to make equal protection of the unborn child’s right not to be killed more explicit than it already is in the Fourteenth Amendment. But given the strength of consensus, in both Congress and the states, required for amendments to the Constitution, this course has zero chance of success.
That leaves one more paramount authority to consider: the Supreme Court. Dobbs overturned Roe, and thank God it did. But does it do more? Is Dobbs a pro-life decision, one that establishes the basis of a legal strategy for protecting the unborn? The answer is “yes.” This is a fact that anyone concerned to defend the sanctity of life must understand….
Dobbs has opened the way for pro-life litigation. Although it does not connect those dots, the majority has supplied all the elements needed for arguments showing that permissive abortion laws, because they arbitrarily treat the fetus as less than a person, lack a rational basis. Every whole living human individual is, by dint of that fact alone, a human person, and thus cannot be treated arbitrarily by any law, especially not by laws that permit that person’s destruction.
Let us not be distracted by the conventional account of what Dobbs accomplished by overturning Roe — the notion that it merely returned the issue to the people and their representatives. This “power to the people” narrative distracts from what the case actually holds. Many on the pro-life movement’s legal side are prone to this distraction. They have long regarded overturning Roe as the terminal point for constitutional law reform. From there on, democracy (so to speak) was to ensure equal protection for everyone — or so we were told. Whether this is true as a matter of normative democratic theory is doubtful. Whether it is true of our Constitution is the subject of this article.
The conservative legal movement is hesitant to take up the cause of life as a positive objective beyond the overturning of Roe as “judge-made law.” It is wary of having the Court make what it regards as “value judgments.” And it is averse to the justices’ continuing involvement in this part of the culture war. But whether or not the child in utero is substantially identical with the newborn infant is not a “value judgment.” The logic of Dobbs suggests that it is a question admitting of a rational answer. And how far the Court should or should not involve itself in the culture war is not a matter of opinion. It depends on what the Constitution, honestly and fearlessly interpreted, requires.
From Gerard V. Bradley, Notre Dame law professor, in First Things