In the wake of the reversal of Roe v. Wade, many pro-life leaders have suggested that now the question of abortion can return to the states, and that it belongs there. Though understandable, this formulation is regrettable. It obscures the fact that our country still needs a national pro-life movement.
Such a movement is a political necessity. The left will, if permitted, put justices on the Supreme Court who will reverse Dobbs v. Jackson Women’s Health Organization and declare once again a federal right to abortion. The only way to prevent this is for pro-life voters to remain active in national politics.
There is also a moral necessity for a national pro-life movement. If abortion is really the wrongful taking of an innocent human life, the solution cannot be to simply leave abortion regulation up to the states. State-based schemes of regulation that chip away at permissive abortion laws are obviously desirable if the only alternative is a national regime of abortion on demand. They are not, however, a result that would satisfy a movement dedicated to defending a fundamental right—the right to life. State regulation of abortion is a welcome improvement on the status quo ante, but it is nevertheless a tactical victory that should not be mistaken for an ultimate solution.
If, then, we need a national pro-life movement, what should be its goals now, after Dobbs? Some might be tempted to seek immediately a constitutional amendment to protect unborn human life. Or, as a possibly less demanding alternative, they might seek a ruling from the Supreme Court holding that abortion is a deprivation of life without due process of law, and hence a violation of the Fifth and Fourteenth Amendments.
The path to achieving these ambitious goals would likely be long and arduous. While they should be long-term goals, they are probably not the immediate next steps on which the pro-life movement should focus. The political and moral necessities noted above also call for goals that are achievable in the near- to mid-term. I would suggest the following goals as sufficiently serious (they are not merely symbolic) and, at the same time, sufficiently practicable.
First, the pro-life movement should seek to ensure satisfactory nationwide conscience protections in relation to abortion. Nobody who works in medicine or health care, or who is training to do so, should be compelled to take part in this procedure or refer patients to others who will do it. These protections should extend not only to doctors and nurses but also to pharmacists. No pro-life pharmacy should have to carry or sell “morning after pills,” for example.
Second, the pro-life movement should demand that Congress take steps to restrict abortion, if not ban it completely. A pro-life majority in Congress could prohibit the practice of abortion in any medical facility that receives federal funding. More ambitiously, such a majority could prohibit abortion in any medical facility that operates in interstate commerce. Similarly, Congress could restrict the sale of abortion pills to instances in which the unborn child has progressed to fifteen weeks’ gestation—or prohibit the sale of such pills in interstate commerce entirely.
All of the pro-life steps suggested above are well within the ordinary powers of the federal government. The spending power includes a power to withhold public money from institutions that conduct themselves in ways that Congress cannot approve. The use of the commerce power to achieve moral ends is no longer controversial. It is, in fact, the basis of much federal civil rights legislation. Indeed, there is already a precedent for using the commerce power to regulate abortion: It was the constitutional authority invoked by Congress in the Partial Birth Abortion Ban Act in 2003. Both the commerce and the spending powers could also be invoked to secure the conscience protections noted above.
Although the authority to take these steps clearly lies with Congress, no Congress will do or attempt any of them in the absence of the kind of determined pro-life political activism that led to the reversal of Roe. National and state pro-life organizations should update their candidate surveys and voters’ guides to reflect these priorities. They should withhold endorsements from candidates for national office who will not commit to voting for these or similar policies. The annual March for Life in D.C. should continue. Although the date for this event was chosen to protest the anniversary of Roe, January 22, that date conveniently coincides with the opening of the new Congress every two years, and with the return of Congress after the holidays every year. With Roe gone, the march should continue, every year, with its protest in defense of innocent life directed at Congress instead of the Supreme Court.
There is still much that can and should be done in national politics to protect the unborn and build a culture of life. It is honorable and just for the pro-life movement to press forward along this path and not rest satisfied with the reversal of Roe v. Wade.
Carson Holloway is a Washington Fellow in the Claremont Institute’s Center for the American Way of Life.
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