Featured Article

Who Are We Now:

Pro-Life Responsibility for the American Proposition

Bioethics in Law & Culture                                                                                                                              Winter 2021       vol. 4  issue  1

David Franks, Ph.D.

Chairman, Massachusetts Citizens for Life

Almost half a century has passed since the Supreme Court constitutionalized the right to abortion. Where are we now, as a nation, with regard to the American proposition (as distilled by President Lincoln) that all humans are created equal?[1] Where is the pro-life movement?

 

There have been, in recent years, immense agitations for human equality under the headings of #MeToo and Black Lives Matter and, to a regrettably lesser extent, on behalf of immigrants and refugees. Surely these belong to the great American commitment to universal human equality—even if we must still see to what extent these agitations were used as stalking horses for anti-Trumpist energy rather than as expressing a long-haul and visceral care for women, African-Americans, and the wretched of the earth that transcends partisan enthusiasms.

 

The same question must be asked of the pro-life agitation to vindicate, at the most primordial level, the proposition that every human is created equal: has pro-Trumpist partisanship cost the pro-life movement anything in terms of either its own clarity on the universality of human solidarity or its credibility as a movement that can wave the flag of universal solidarity?[2]

 

One easy test of conscience for exposing whether partisanship, class, and identitarian anxiety animate us or whether disinterested justice and love do so: have we taken the claims of all these agitations for human equality to heart—or do we make excuses for excluding or minimizing one or another?

 

The pro-life movement should stand for the flourishing of every human life, and now is the time to return to the existential sources of that mission. The social and political movement, right or left, that coherently commits itself to human equality, without justifying blind spots, will be able to advance the American project, having the credibility necessary to help reconcile an ideologically driven nation through the conduct of an honest conversation capable of transcending hardened partisan positions towards a luminous common good.

 

The question of what the last four years have meant for the American republic is unavoidable for the nation as a whole and the pro-life movement in particular, especially after the astonishing January 6th incursion into the Capitol.

 

We finally might have a Supreme Court majority willing to overturn Roe v. Wade. That remains to be seen, but not since the days leading up to Planned Parenthood v. Casey in 1992 has there been such expectation—and it is more firmly based now. If it is so, the pro-life movement has to be ready for a re-introduction of itself, indeed must undergo a repristination, especially in the progressive states whose citizens will have to be democratically persuaded that killing is no solution to even the urgent and difficult problems attending the liberty and equality of women.

 

As a propaedeutic for necessary renewal, this article will take a political-philosophical look at the political time of day—the status and history of the abortion contest and of Supreme Court abortion jurisprudence,[3] as well as the roots and trajectories of the pro-life and pro-choice movements—in order to gain a specificity of orientation by which the agitations for universal equality may be considered in light of Lincoln’s understanding of the American project. We will see the inextricability of rights and social life. The hope is to empower transcendence of partisanship for the sake of an ever more effective realization of the American proposition in law and society.

 

I. Where We Are 

 

President Biden and Vice President Harris issued a joint statement January 22nd, 2021, on the forty-eighth anniversary of Roe v. Wade, two days after the presidential inauguration, stating that, “the Biden-Harris Administration is committed to codifying Roe v. Wade.”

 

This is code arising from a well-coordinated push in the state legislatures by a pro-choice coalition (featuring Planned Parenthood, NARAL, and the American Civil Liberties Union) after the confirmation of Justice Brett Kavanaugh to the Supreme Court in late 2018. These efforts resulted in the passing of legislation expanding the scope of an abortion right beyond even what is to be found in Roe v. Wade.

 

That is, “codifying Roe” is not actually about codifying Roe. NARAL Massachusetts’s executive director, Rebecca Hart Holder, was explicit about this when asked in a Ms. magazine interview, “Does the law codify Roe v. Wade and the right to abortion in the state of Massachusetts?” She replied, “Yes, the intention is to create an affirmative right to say that the state can’t interfere in your reproductive healthcare decisions. We think of Roe v. Wade as the floor, not the ceiling, and our intention was to write in a more expansive right into our state laws that prevent the Commonwealth from interfering in personal reproductive decisions.”[4]

 

This has the virtue of an honesty nowhere to be found in the public political posturing when the legislation was still in contest. After the confirmation of Justice Amy Coney Barrett to the Supreme Court in late 2020, a variant of the Massachusetts version of “codifying Roe” (the ROE Act)[5] was smuggled into law as an amendment in the chicanery of a budget process.[6] This budget amendment completely transforms the abortion code in the Massachusetts General Laws, and removes all the humanizing language that encourages a realistic consideration of the stakes of abortion.

 

The ROE Act, in its redefinition of “abortion,” effaces the humanity of the unborn child. The superseded definition ran thus: “the knowing destruction of the life of an unborn child or the intentional expulsion or removal of an unborn child from the womb...” The Newspeak version: “‘Abortion,’ any medical treatment intended to induce the termination of, or to terminate, a clinically diagnosable pregnancy...” And the old code included this definition, completely eliminated: “unborn child, the individual human life in existence and developing from implantation of the embryo in the uterus until birth.” The erstwhile definition of “pregnancy”: “the condition of a mother carrying an unborn child.” The new: “the presence of an implanted human embryo or fetus in the uterus.” (The ROE Act even synthesizes abortion expansion with an effacement of the irreplaceable role of the bearer of the XX chromosomal pair in the survival of our species.)

It is one thing to hold that abortions are necessary for the liberty of women and girls; it is another to pretend that there is no high cost to liberty secured in that way. The kind of civic conversation such weighty matters require of us as citizens stands in need of advertence to the scientific facts delivered by embryology and developmental biology, at the very least.[7]

 

Above all, the ROE Act creates an unprecedented right to unrestricted abortion. Such an absolute right conjures an impenetrable zone of personal autonomy, within which the taking of human life cannot be regulated at all—even for the sake of the health and safety of the mother, which Roe had explicitly maintained as balancing interests after the first trimester.[8] Roe v. Wade in no way asserts abortion as an absolute right, but this putative “codification of Roe” states, “The commonwealth, or a subdivision thereof, shall not interfere with a person’s personal decision and ability to prevent, commence, terminate or continue their own pregnancy consistent with this chapter, or restrict the use of medically appropriate methods of abortion or the manner in which medically appropriate abortion is provided.”

 

All of the modest, yet significant, limitations on abortion secured in Massachusetts soon after Roe by a pro-life (and overwhelmingly Catholic) Democratic legislature have been undone by a very different Democratic Party.[9] This is not the codification of Roe v. Wade as a prophylactic against its being overturned by a conservative Supreme Court majority; this does not even deliver a pre-Casey, Doe-controlled, Roe (which, given Doe’s maximal health exception, in effect allows abortion up until birth). With this supposed codification of Roe, under no circumstances would any abortion be bound by criminally enforceable limits, and this immunity would be based on an absolute principle that the community has no right or responsibility to regulate this form of private killing. The pleonasm, “a person’s personal decision,” signals the inanity of ideological assertion. This is not pro-choice; it is pro-abortion.

 

This variant of the ROE Act joins another enshrinement of an unrestricted abortion right in Vermont, as well as the Reproductive Health Acts in New York and Illinois and the Reproductive Privacy Act in Rhode Island, as post-Kavanaugh “codifications of Roe.” This is what the incoming presidential administration has committed itself to.

 

Whether the Sixth Party System will survive the Trump volatilization remains to be seen. The loss of both Georgia Senate seats by the Republican Party in the early 2021 runoff election provides evidence that the partisan alignment of the pro-life movement with a Trumpist Republican Party bears pragmatic peril.

 

The backing of Republican candidates for president in order to change the composition of the Supreme Court has been a central part of the pro-life political strategy at least since the breakdown of efforts, in the early 1980s, to advance a constitutional amendment banning abortion nationwide. But even before that, a realignment was taking shape in the 1970s, along what would come to be known as “culture war” lines; that shift greatly contributed to the creation of the Sixth Party System. Whether and to what extent the phenomenon of Reagan Democrats can be analytically linked to Trumpism is a question that requires further exploration. Are we seeing the rounding off of a great inclusio?

 

The pro-life movement does not have conservative or Republican roots; it started as a preeminently “liberal” phenomenon (liberal primarily, though not exclusively, in the classical sense).[10] Now that the Supreme Court strategic gambit seemingly has been seen to the end, the movement is free to reassess the desirability of the culture war paradigm. The future of any movement is in the young, and the heart of the young is not with the Republican Party in its current condition. Consider newer pro-life groups such as Rehumanize International, New Wave Feminists, and Secular Pro-Life. If at a different political time of day, talk of a “consistent ethic of life” sounded like code for compromising away the right to life of the most powerless humans for the sake, perhaps, of other disadvantaged groups, maybe it is time to hear what might be heard beyond partisan dichotomies—so as to earnestly seek, in freshness of spirit, to vindicate the equality of every human life, starting from a preferential option for the most powerless. Perhaps both national parties should be judged against their fidelity to the full amplitude of responsibility implied in the declaration that all humans are created equal.

 

A recently published book traces the shifting emphases of the debate over abortion since Roe. In a useful, though numbingly repetitious, account, Mary Ziegler notes:

 

Between 1973 and 2019, the conflict has centered not so much on laws criminalizing abortion outright as on the quest for incremental restrictions designed to undermine Roe v. Wade. And with this change in emphasis, the struggle has increasingly turned not only on rights-based trumps but also on claims about the policy costs and benefits of abortion for women, families, and the larger society. …when making arguments about the costs and benefits of abortion, activists on either side primarily discussed not what the Constitution allowed but whether legal abortion was socially, culturally, personally, and medically desirable or justified. Consequence-based arguments put greater emphasis on the reasons that individuals might choose or oppose abortion rather than on individual liberty from the state.[11]

 

Ziegler makes a useful distinction between rights- and policy-based arguments operative in the abortion debate, but this is a conceptual, not a historical distinction. Ziegler, however, tries to map those different types of arguments onto specific chapters of the historical debate, causing her to resort to repetition and muddiness to make her scheme more persuasive. The dueling constitutional rights claims stem from commitments to a broader social vision: political and legal goals arise from a certain kind of communal life with a certain vision of society. Originally, on the pro-life side, it was a matter of an American Catholic liberal humanitarianism, exemplified by Catholic Democrats, animated by a desire to create a society that protected the weak.[12] On the pro-choice side, originally, the matrix was a definite one of progressive eugenics and population control.[13]

 

Nevertheless, the conceptual distinction between rights- and policy-based arguments is useful, and Ziegler’s historical account helps us track important changes. On the pro-life side, the pursuit of incrementalist legislation (rather than of an outright national ban on abortion) depends more directly on pointing out the costs of abortion for, say, the status and health of women. Focusing on the complex sexual politics surrounding abortion has perhaps had the effect of reconciling most pro-lifers to a states’ rights approach to recriminalizing abortion.[14]

 

On the pro-choice side, one notes the stark difference between Justice Harry Blackmun’s rhetoric in Roe, which almost places as much emphasis on the autonomy of doctors as on the privacy rights of women, and Justice Anthony Kennedy’s argumentation in Planned Parenthood v. Casey, in which equal citizenship arguments come to the fore. The axis shifts from autonomy and privacy under the Due Process Clause to social equality under the Equal Protection Clause.[15] What has changed since the original efforts to decriminalize abortion is the rise of progressive feminism, which has shifted more and more to a comprehensive “reproductive justice” vision.

 

The focus on Roe as a symbol in the public debate diverts from the fact that Planned Parenthood v. Casey is the controlling precedent with regard to the scope of the abortion right. Casey dismissed Roe’s trimester framework, according to which the state’s interest in protecting women’s health and “potential human life”[16] could be allowed to limit the abortion right beginning with the second trimester and viability (or the third trimester), respectively.[17]

Casey replaced this with an “undue burden” test: “The very notion that the State has a substantial interest in potential life leads to the conclusion that not all regulations must be deemed unwarranted. Not all burdens on the right to decide whether to terminate a pregnancy will be undue. In our view, the undue burden standard is the appropriate means of reconciling the State’s interest with the woman’s constitutionally protected liberty” (876).

 

And what would be an undue burden on a mother’s constitutional right to terminate her pregnancy? “A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus” (877).

 

After Casey, pro-lifers intensified pursuit of the incrementalist strategy, advancing legislation particularly in the states that would educate the public about the complex issues involved in abortion (from coercion to conscience violations to post-abortion trauma to fetal pain and the gruesomeness of abortion procedures to eugenics to the assembly-line nature of abortion clinics) and also put pressure on the efficiency and profit margins of the abortion industry. Ziegler notes, “Abortion foes passed more restrictions between 2011 and 2013 than in the entire previous decade. Although the pace slowed after 2013, 288 restrictions—fully 27 percent of those passed between 1973 and 2016—were introduced since 2010.”[18] These laws were being passed in red, not blue, states, rendering fewer abortion clinics viable in those states. More and more we have been seeing a post-Roe national configuration take shape, even with Roe and Casey still in effect. Casey’s low threshold for determining an undue burden allowed many abortion restrictions to stand.

 

This earned the ire of pro-choice advocates who invented the term TRAP laws (targeted regulation of abortion providers) to describe legislative initiatives that seemed to be squeezing abortion clinics in red states. “Access” became the great shibboleth, and in 2016 the abortion industry scored a victory in the Supreme Court decision Whole Woman’s Health v. Hellerstedt, in which two provisions based on Americans United for Life model legislation incorporated into a law passed by the Texas legislature (requiring abortion clinics meet the regulatory requirements governing ambulatory surgical centers and requiring abortion-performing doctors maintain admitting privileges at a nearby hospital) were struck down. The majority took the opportunity to transform Casey’s undue burden test into a balancing test of cost-benefit analysis.

 

Justice Clarence Thomas wrote in dissent:

 

… the majority radically rewrites [Casey’s] undue-burden test in three ways. First, today’s decision requires courts to “consider the burdens a law imposes on abortion access together with the benefits those laws confer.” Second, today’s opinion tells the courts that, when the law’s justifications are medically uncertain, they need not defer to the legislature, and must instead assess medical justifications for abortion restrictions by scrutinizing the record themselves. Finally, even if a law imposes no “substantial obstacle” to women’s access to abortions, the law now must have more than a “reasonabl[e] relat[ion] to…a legitimate state interest.” These precepts are nowhere to be found in Casey or its successors, and transform the undue-burden test to something much more akin to strict scrutiny. …One searches the majority opinion in vain for any acknowledgment of the “premise central” to Casey’s rejection of strict scrutiny: “that the government has a legitimate and substantial interest in preserving and promoting fetal life” from conception, not just in regulating medical procedures (6, 10).

 

Thomas notes that Whole Woman’s Health increased the level of scrutiny to be applied to abortion restrictions and that in trying to avoid the deference Gonzales v. Carhart extended to legislative fact-finding, the majority in Whole Woman’s Health wished to shift more of the authoritative determination of facts to the judiciary, in order to vindicate the putative constitutional right to abortion by preserving “access” as much as possible.[19]

 

But “access” was a pro-choice activist preoccupation, not native to Supreme Court jurisprudence. In Whole Woman’s Health, the majority makes their own activist preoccupation with abortion access. Nowhere in the Casey plurality opinion do the authors make “access” an essential element of the limited abortion right. Indeed, they make clear that abortion access is not an end in itself:

 

As our jurisprudence relating to all liberties save perhaps abortion has recognized, not every law which makes a right more difficult to exercise is, ipso facto, an infringement of that right. …The abortion right is similar. Numerous forms of state regulation might have the incidental effect of increasing the cost or decreasing the availability of medical care, whether for abortion or any other medical procedure. The fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it. Only where state regulation imposes an undue burden on a woman’s ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause (873-73).

 

Whatever “undue burden” means in Casey, it does not mean that each state is required to beg off of pursuing legitimate state interests in limiting the abortion right in favor of preserving the abortion-industry infrastructure in any given state. But such preservation is the desideratum of the majority in Whole Woman’s Health, which repeatedly focuses on “access” and frames its balancing test as an explicit concern for the burden abortion legislation might place on abortion access. If it is the case that Whole Woman’s Health in trying to throttle abortion regulations by placing them under strict scrutiny with regard to their effect on abortion access has “hardly put abortion-rights on safe ground,” because “by making each abortion case turn on its own specific facts, the Court opened the door for restrictions that differed only slightly from the one passed in Texas,”[20] this is all at the feet of the Whole Woman’s Health majority, who nakedly changed the meaning of Casey in order to preserve abortion infrastructure. This project necessarily requires adjudication of facts specific to each abortion regulation: does it burden abortion access in this or that state?

           

Such close adjudication is what happened with the most recent abortion decision, last year’s June Medical Services LLC v. Russo, which focused on a Louisiana law very much like the Texas provision that was struck down, requiring abortionists to maintain admitting privileges at a nearby hospital. The Whole Woman’s Health balancing test necessitates fact-finding and evaluation by the judiciary of legislative enactments of abortion limitations to check whether they compromise abortion access in a given state.

 

Chief Justice John Roberts, though dissenting from Whole Woman’s Health, concurred in June Medical, but did so in a way that might negate the balancing test from Whole Woman’s Health, returning us to the Casey undue burden standard understood as rational-basis review of a legislatively enacted abortion restriction, plus determination of whether that restriction creates a substantial obstacle for a mother’s pursuit of an abortion.[21]

Not many were mollified by June Medical. Pro-lifers had hoped that Whole Woman’s Health would be reversed at least; pro-choicers hoped for an absolutization of abortion rights. As Gretchen Borchelt, vice president for reproductive rights and health at the National Women’s Law Center, put it: “We deserved a sweeping Supreme Court decision that recognizes and supports both the right to abortion and access to abortion. A decision that takes account of those who are most affected by abortion restrictions, including Black people who are at the center of our country’s current reckoning with racism and white supremacy. We need a decision that connects abortion to the current movement for gender justice in this country, to equality and to freedom.”[22]

 

Note that emphasis on “access to abortion.” Merely securing a right to abortion finally rid of the limitations preserved in Roe is not enough; abortion access must be guaranteed. And we hear from pro-choice advocates, repeatedly, how abortion restrictions fall disproportionately, say, on African-Americans, and yet the black share of the United States population has been flatlined at 13% for decades, not least because a disproportionate number of black babies are aborted. Borchelt also seems innocent of the white supremacist history of abortion advocacy: population controllers and eugenicists were often white racists.[23]

 

Neither side wants to live in a house divided. But perhaps we all have to be patient with that condition, so that the long work of reconciliation might go forward. One side defeating the other side outright will not advance harmony.

 

Though I think Ziegler wrong in refusing to acknowledge the deformation of the political process wrought by the Supreme Court’s usurpation in Roe of what should have continued as a democratic argument, she surely is right that a reversal of Roe will not restore civility to the abortion debate:

 

To some degree, the growing divide in the abortion debate reflects the polarization of both American party politics and media. As both movements have strengthened their reliance on a single party, the growing divisions between the Republican and Democratic Parties affected the abortion struggle. But both movements have profited strategically from taking polarized positions on the costs and benefits of abortion. …by taking sharply different positions on the costs and benefits of abortion, both movements hope to motivate voters and ensure the loyalty of a party worried about maintaining the allegiance of single-issue voters. …The time has come to reconsider why we have arrived at such an impasse. The stakes are high, for the abortion debate has always reflected other battles that define American culture. The abortion fight has shaped and reflected national conversations about health care, the needs of the poor, the role and size of government, the fortunes of the family, and the value and meaning of scientific expertise.[24]

 

Ziegler’s conclusion is well put: “Regardless of the fate of Roe v. Wade, the legal history of abortion will still tell a story about what kind of country the United States has been and will become.”

 

Neither side wishes to live in a house divided because the assumption is we are dealing with a moral absolute here—like slavery. The question is, can we find a way to merge horizons, in a common commitment to the American project? What kind of country will we make together?

 

II. Lincoln on the Regime: Politics and Society

 

What both sides recognize in the juggling of rights- and policy-based arguments, is that political and legal formalities cannot be separated from social substance and complexity. If the animating concern is in fact the pursuit of universal equality, then the necessary recognition of that equality through rights must be socially grounded. This was the great juncture faced by Lincoln in considering Reconstruction: political freedom has social requisites. The vindication of the reality that all humans are created equal is not only a matter of law: it must have some realization in society. The Fourteenth Amendment has been the center of so much controversy because it has served as a pivot between rights and social substance.

 

We will look at Lincoln’s April 6, 1859, “Letter to H. L. Pierce and Others,”[25] which bears on our topic in particular, given its foundational meditation on the genealogy of the American party system. Though this letter precedes the Civil War and Reconstruction, the advertence to economics opens up the social context of liberty and equality.

 

Lincoln had been invited to give a speech in Boston for a celebration in honor of Thomas Jefferson’s birthday. Declining the invitation, Lincoln notes that the Democratic Party, descended from Jefferson’s party, “have nearly ceased to breathe his name everywhere.” He goes on to marvel at the exchange of places effected by the two partisan lines: the “Jefferson party” had been founded on “its supposed superior devotion to the personal rights of men, holding the rights of property to be secondary only, and greatly inferior,” while the line that began with the Federalists, and carried on in the Whigs and now Republicans, had originally had the opposite valuation. But the Democratic Party’s capture by the slave power has flipped everything: “The democracy of to-day hold the liberty of one man to be absolutely nothing, when in conflict with another man's right of property. Republicans, on the contrary, are for both the man and the dollar; but in cases of conflict, the man before the dollar.”

 

Lincoln then gives us one of his homely, humorous, and sharp illustrations: “I remember once being much amused at seeing two partially intoxicated men engage in a fight with their great-coats on, which fight, after a long, and rather harmless contest, ended in each having fought himself out of his own coat, and into that of the other. If the two leading parties of this day are really identical with the two in the days of Jefferson and Adams, they have performed the same feat as the two drunken men.”

 

Lincoln’s claim is that it is the Republican Party, founded to stop the spread of slavery into the territories, that has saved the Jeffersonian legacy, summed up in that greatest of all political propositions: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.” For Lincoln, these are the great axioms of America and of liberty: “…it is now no child’s play to save the principles of Jefferson from total overthrow in this nation. One would start with great confidence that he could convince any sane child that the simpler propositions of Euclid are true; but, nevertheless, he would fail, utterly, with one who should deny the definitions and axioms. The principles of Jefferson are the definitions and axioms of free society.” It is a kind of political insanity to try to live the American project without reliance on, and devotion to, the reality of the American principle.

 

Then Lincoln notes how the American declaration, penned by Jefferson, has been mocked by Democrats as “glittering generalities” and “self-evident lies” or as applying only to “superior races.”

Lincoln writes of these Democratic repudiations of democracy’s principles: “These expressions, differing in form, are identical in object and effect—the supplanting the principles of free government, and restoring those of classification, caste, and legitimacy. They would delight a convocation of crowned heads, plotting against the people. They are the van-guard—the miners, and sappers—of returning despotism. We must repulse them, or they will subjugate us.”

That is, no liberty is safe if slavery be not put in the course of ultimate extinction, and repudiated in the heart: “This is a world of compensations; and he who would be no slave, must consent to have no slave. Those who deny freedom to others, deserve it not for themselves; and, under a just God, can not long retain it.”

And so it is with any American citizen now: if we would enjoy equality, we must guard the equality of every other. Right, left, or center: if there are groups of people whose equality as humans we overlook, then we have delegitimized our own claim to equality. If we would enjoy life, we must defend it in the unborn and the refugee and the African American. If we would enjoy liberty, we must defend it in women. The reality of the definitions and axioms of free society enable us to transcend partisanship so we may reason together about our responsibility as Americans to compass both equality and liberty.

Beyond all partisan configurations, we must think with Lincoln about the nexus of abstract truth and concrete life: “All honor to Jefferson—to the man who, in the concrete pressure of a struggle for national independence by a single people, had the coolness, forecast, and capacity to introduce into a merely revolutionary document, an abstract truth, applicable to all men and all times, and so to embalm it there, that to-day, and in all coming days, it shall be a rebuke and a stumbling-block to the very harbingers of re-appearing tyranny and oppression.”

Killing cannot be the means to vindicate the just aspirations and demands of women for equality; placing privatized killing beyond the pale does not end our responsibility to vindicate those just claims, but rather makes it possible for us to take up the work in earnest. The American project of realizing equality must begin with the barest human life and go on and on, for tyranny is always crouching at our door. We must master the tyranny within, so we might be free—and help others to freedom.

_____________________

[1] As he says in the Gettysburg Address: “Four score and seven years ago, our fathers brought forth, upon this continent, a new nation, conceived in liberty, and dedicated to the proposition that ‘all men are created equal.’”

[2] For example, Black Lives Matter has captured the imagination of the young. And the pro-life movement, as an overwhelmingly white phenomenon, must take these equality claims especially to heart.

[3] The political philosopher Eric Voegelin notes that the Supreme Court and its opinions are “the source of political culture in America.” In Autobiographical Reflections, rev. ed. with a Voegelin glossary and cumulative index (The Collected Works of Eric Voegelin Volume 34), Ellis Sandoz, ed. (Columbia, Mo.: University of Missouri Press, 2006), pp. 58-59.

[4] Carrie N. Baker, “Groundbreaking Massachusetts Abortion Law Repeals Parental Consent for Older Teens,” Ms. (12/29/20): https://msmagazine.com/2020/12/29/massachusetts-abortion-law-roe-act/.

[5] See J. David Franks, “From Pro-Choice to Pro-Abortion: The ROE Act as Abortion Absolutism,” Journal of Bioethics in Law and Culture Quarterly Vol. 2, Issue 2 (Spring 2019).

[6] Hart Holder’s honesty in the interview continues when asked what the law does: “There were criminal penalties in the law that impacted the provision of later abortion care and these were removed so that providers who are offering care to people later in pregnancy don’t have to be afraid of any criminal penalty. I can’t stress enough how critically important that is to providers.”

     This is legislation that cares about what is important for “providers,” for the abortion industry. Immunization from criminal penalty as a prime desideratum was never clearly stated in any public testimony or in any public representations of the character of the bill. Indeed, the legislation eliminates all criminal penalties for the performance of any abortion—whether coerced, sex-selective, eugenic, incompetently executed, performed by a non-physician, inflicted on a victim of sex trafficking, statutory rape, or other sexual abuse, etc. The Trojan horse here was “lethal fetal anomaly,” but Hart Holder now makes clear that the real point was to empower the proliferation of later-term abortions. This vindicates the pro-life objection to these post-Kavanaugh “codifications of Roe” as opening the door to infanticide. And it indicates how much more radicalized the pro-choice position has become since even Casey, where we find, “The woman’s right to terminate her pregnancy before viability is the most central principle of Roe v. Wade” (871): abortions “before viability,” certainly not later-term abortions, were the focus of Roe (and of Casey). “The codification of Roe” is not about codifying Roe.

[7] In this respect, the ROE Act shows a loyalty to Roe’s ideological mindlessness in going back of Planned Parenthood v. Casey, which maintains, in superseding Roe: “Though the woman has a right to choose to terminate or continue her pregnancy before viability, it does not at all follow that the State is prohibited from taking steps to ensure that this choice is thoughtful and informed. Even in the earliest stages of pregnancy, the State may enact rules and regulations designed to encourage her to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy to full term and that there are procedures and institutions to allow adoption of unwanted children as well as a certain degree of state assistance if the mother chooses to raise the child herself” (872).

[8] Roe, 159: “The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus, if one accepts the medical definitions of the developing young in the human uterus. …The situation therefore is inherently different from marital intimacy, or bedroom possession of obscene material, or marriage, or procreation, or education, with which Eisenstadt and Griswold, Stanley, Loving, Skinner, and Pierce and Meyer were respectively concerned. As we have intimated above, it is reasonable and appropriate for a State to decide that, at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved. The woman's privacy is no longer sole and any right of privacy she possesses must be measured accordingly.”

[9] Thomas Ascik notes, “Even as late as the Clinton presidency, it was satisfactory for Democrats to say of abortion merely that it be ‘safe, legal, and rare.’ The 1996 platform said: ‘less necessary and more rare.’ But the 2008, 2012, and 2016 Democratic party platforms stated that the party ‘unequivocally’ supported ‘safe and legal’ abortions, although with the qualifying language of its goal to ‘reduce the need for abortion.’ The 2016 platform called for the first time for a repeal of the Hyde Amendment which prohibits federal funding of abortion and which had been in effect since 1976.” In “The Dark Road from Abortion to Infanticide in American Law,” The Imaginative Conservative, February 3, 2020: https://theimaginativeconservative.org/2020/02/abortion-infanticide-american-law-thomas-ascik.html.

[10] See, for example, Daniel K. Williams’s Defenders of the Unborn: The Pro-Life Movement before “Roe v. Wade” (Oxford: Oxford University Press, 2016), p. 4: “I argue that the movement’s origins and endurance can be explained by its rights-based paradigm and its utilization of the language of postwar American liberalism. The pro-life cause originated at a far earlier date than historians have previously thought, and its origins were not tied to a backlash against the women’s movement, but instead to a concern about the consequences of the nation’s disrespect for human life. This book also challenges conventional presuppositions about the pro-life movement by showing that it originated not among political conservatives, but rather among people who supported New Deal liberalism and government aid to the poor, and who viewed their campaign as an effort to extend state protection to the rights of a defenseless minority (in this case, the unborn). Only after Roe v. Wade, when the pro-life movement’s interpretation of liberalism came into conflict with another rights-based movement—feminism—and it became clear that pro-lifers would not be able to win the support of the Democratic Party, did the movement take a conservative turn. Yet because of the movement’s liberal origins, its position in the Republican Party remains an uneasy one even today.”

[11] Ziegler, Abortion and the Law in America: “Roe v. Wade” to the Present (Cambridge: Cambridge University Press, 2020), p. 2.

[12] Williams, Defenders, p. 4: “The Catholics who launched the pro-life movement grounded their campaign not only in their Church’s natural law theology, but also in the twentieth-century American liberal values of individual rights, legal protections for minorities, and societal recognition of human dignity. Many of the people who first began speaking against abortion in the 1930s, as well as those who created the first right-to-life organizations in the mid-1960s, were Catholic Democrats who were committed to New Deal liberalism.”

[13] See Angela Franks’s discussion of that history in Margaret Sanger’s Eugenic Legacy: The Control of Female Fertility (McFarland & Company, 2005). The key figure behind decriminalization of abortion was the population control zealot Lawrence Lader, auther of Breeding Ourselves to Death.

[14] In any case, such is the only feasible approach. The question is whether pro-lifers can maintain a balance between the urgency of restoring the right to life of the most powerless and recognition that that right cannot be established through silver bullets—must in fact be won through patient democratic persuasion, state by state.

[15] See Erika Bachiochi’s excellent article, “Embodied Equality: Debunking Equal Protection Arguments for Abortion Rights,” Harvard Journal of Law & Public Policy Vol. 34, No. 3 (Summer 2011), p. 892, for example. The article can be found at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1873485.

[16] The vacuity of the phrase “potential human life” is well skewered by Gerard V. Bradley in “Biden’s Promise to Codify Roe” in First Things (1.12.21): https://www.firstthings.com/web-exclusives/2021/01/bidens-promise-to-codify-roe.

[17] Casey, 873: “A logical reading of the central holding in Roe itself, and a necessary reconciliation of the liberty of the woman and the interest of the State in promoting prenatal life, require, in our view, that we abandon the trimester framework as a rigid prohibition on all previability regulation aimed at the protection of fetal life. The trimester framework suffers from these basic flaws: in its formulation it misconceives the nature of the pregnant woman’s interest; and in practice it undervalues the State’s interest in potential life, as recognized in Roe.”

[18] Ziegler, Abortion, p. 198.

[19] Ziegler notes in connection with Gonzales: “Forming their own expert organizations, abortion opponents contended that groups from ACOG to the American Cancer Society simply repeated what was politically correct. At the same time, antiabortion activists and lawyers defined new sources of expertise, including women who regretted abortion and lay people observing the abortion debate. Abortion-rights groups insisted that preeminent medical organizations, rather than voters or politicians, should make medical decisions. …The abortion debate reflected creeping doubt about whether any authority in America reliably told the truth.

     “Debate about partial-birth abortion illuminated how common ground in the abortion debate was becoming harder and harder to find. Rather than arguing only about core values, those on opposing sides came to disagree about who counted as an expert and what kind of evidence deserved attention. …Often, opposing activists saw one another not only as wrong but as fundamentally dishonest” (Abortion, p. 180).

     This presents a grave obstacle to civil conversation: how can both sides converge on the common ground of reality? 

[20] Ziegler, Abortion, p. 200.

[21] It is not clear what the effect of the Chief’s concurrence will be. Compare, for example, these two pro-choice advocates, in their opposite assessments of Roberts’s concurrence in June Medical: Gretchen Borchelt in “June Medical Services v. Russo: When a ‘Win’ is Not a Win”: https://www.scotusblog.com/2020/06/symposium-june-medical-services-v-russo-when-a-win-is-not-a-win/; and David S. Cohen in “Why Whole Woman’s Health’s Balancing Test Still Applies after June Medical’:  https://harvardlpr.com/2020/08/24/why-whole-womans-healths-balancing-test-still-applies-after-june-medical/.

[22] Ibid.

[23] Justice Clarence Thomas’s concurrence in Box v. Planned Parenthood of Indiana and Kentucky, highlighting the link between eugenics and abortion, is certainly worthwhile: https://www.supremecourt.gov/opinions/18pdf/18-483_3d9g.pdf.

[24] Ziegler, Abortion, p. 212.

[25] Roy P. Basler, ed., Abraham Lincoln: His Speeches and Writings (Cleveland, Oh.: Da Capo Press: 1946), pp. 488-89.