For years the pro-life movement has advanced incrementally through state-level protections and judicial challenges. We have had real victories. Vice President Pence is right: “Life is winning.” Yet now is the time to set forth an even bolder political agenda for a future in which we can finally say that “life has won.”
With legal scholar Joshua Craddock and “Americans United for Life” president Catherine Glenn Foster, I have been advocating for something we call “The Lincoln Proposal.” Our proposal takes inspiration from Abraham Lincoln’s most important moral act as president—the abolition of slavery—and applies his lessons about the just use of executive power to the pro-life cause.
In 1857, the Supreme Court decided in Dred Scott v. Sandford that slaves were not citizens, and so were not due the freedoms guaranteed under the Constitution. Many considered the decision “settled law” at the time. But while Lincoln acknowledged the court’s ruling to be binding on the parties, he denied that it had “precedential effect” and did not believe the court had settled the matter. In his first inaugural address, he boldly stated that the judiciary does not have exclusive interpretive authority over the Constitution: “the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”
In a legal opinion, Lincoln’s attorney general argued that “the president and the judiciary are co-ordinate departments of government, and the one not subordinate to the other.” The executive must be able “to act out its own granted powers, without any ordained or legal superior possessing the power to revise and reverse its action.”
Lincoln took seriously his own interpretive authority over the Constitution, implied in the “take care” duty of Article II. In his first inaugural address, he made it clear that the president has this authority: “I shall take care, as the Constitution itself expressly enjoins upon me.” The Lincoln administration immediately began disregarding Dred Scott’s argument by issuing passports and patents to black Americans. And despite Dred Scott’s claim that the federal territories were required to permit slavery, Lincoln signed bills that abolished slavery in the territories and the District of Columbia.
Lincoln’s 1863 Emancipation Proclamation declared “that all persons held as slaves” within the warring southern states “are, and henceforward shall be free.” It was only five years later, in 1868, that Congress codified Lincoln’s executive order by passing the Fourteenth Amendment protecting the life, liberty, and property of “any person.” Dred Scott was not undone incrementally by way of judicial challenges. It was undone by the blood sacrifice of many and by the executive order of the president of the United States.
Today we find ourselves in a five-decade-long battle against the similarly unjust 1973 Roe v. Wade decision, which erroneously extended the constitutional right to privacy to permit the killing of life in the womb. At one time, perhaps it was reasonable to focus exclusively on a legal remedy to Roe. Yet in 1992, Planned Parenthood v. Casey doubled down on the right to abortion, extending Roe with a new ambiguous standard of “viability.” This decision has led to the grievous injustice of legal abortion-on-demand at every stage of human development in the womb, even at the point of birth.
Lincoln provides a bold and fitting example for presidents to follow, irrespective of Roe or Casey. As Lincoln proved, the president can—now, or in a future administration—exercise his independent constitutional authority to interpret the Fourteenth Amendment’s safeguards of due process and equal protection as extending to all human beings, including the preborn. He or she can write an executive order that will have binding effect on the departments and agencies of the executive branch. The president can direct each part of the executive branch to review all rules, regulations, policies, and programs to ensure that each defends due process and equal protection for human beings at every stage of development.
Some in the pro-life movement will raise a practical objection. They will point out that such use of executive power would be effective at the beginning of a new administration, but ineffectual at the end of one. They may also raise a second objection: Why sign such an order only to see a pro-abortion president reverse it?
To the first objection: I grant that it would be immeasurably better for a pro-life president to sign such an order at the start of his or her term. The order would face legal challenges, and so it’s better to have time to meet those challenges. However, in future, every pro-life president should commit to renewing this order in defense of the dignity of human life in the womb. We should not be deterred by when such a precedent is set, or even by whom it is set. Like Reagan’s Mexico City Policy (a policy protecting the unborn through global health aid), which has been continually reversed and renewed, the Lincoln Proposal is not a short-term fix, but rather a long-term commitment to the use of Article II power for the protection of the unborn under the Fourteenth Amendment.
As to the second objection, I would say that it is sometimes clarifying and politically beneficial to expose how radical one’s political opponents have become. Joe Biden touts his Catholic background but also threatens the religious liberty of nuns. If an executive order were in place to protect human life in the womb, Catholics who claim to be pro-life but vote for pro-abortion presidents would have to ask themselves hard questions when their president reverses such an order. In the long run, the reversal of these orders would be as instructive as their promulgation.
“The Lincoln Proposal” sets a litmus test for all future presidential candidates. If a candidate claims to be pro-life and seeks the votes of pro-lifers, his or her mandate should be clear: Be bold for life.
C. C. Pecknold is Associate Professor of Systematic Theology at The Catholic University of America.
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