The Pro-Life Legal Movement Also Deserves Credit for Dobbs

The intellectually, ideologically, and religiously diverse cohort of the historical pro-life legal movement should be not merely celebrated but emulated.

‘V ictory has a thousand fathers,” said the president of the United States in the wake of the Bay of Pigs fiasco, “but defeat is an orphan.” No matter that JFK was paraphrasing Mussolini’s son-in-law, and no matter that, in the battle against Roe v. Wade, victory was assured by the efforts of the millions of mothers who bravely funded, volunteered, and otherwise sustained the life of the greatest countercultural social movement of our times.

What matters is that, in looking back on what it took to defy the alleged “super-precedent” that denied government any power to protect the lives of unborn children, we do not forget those without whose efforts the victory in Dobbs v. Jackson Women’s Health Organization would never have happened.

Dan McLaughlin and Philip Klein credit Mitch McConnell and Donald Trump, and the broader conservative legal movement, for the result in Dobbs. Klein and others cite the Federalist Society for its massive effort to revive text-centered jurisprudence in the realm of constitutional law.

Yet, all of this would have been in vain but for the efforts of the pro-life legal movement, born long before the emergence of the “conservative” legal movement and “FedSoc,” and by no means the exclusive domain of textualists. Full disclosure: I have played a minor role in that movement and count as mentors, colleagues, and friends a number of those mentioned here. But I write primarily as a witness to those who should never be forgotten.

First and foremost is Chicago attorney Dennis J. Horan. In 1974, he rescued the three-year-old, financially distressed educational organization Americans United for Life (founded by, among others, L. Brent Bozell), moving it from the Potomac to the Windy City. Horan saw the necessity of establishing a “legal defense fund” to go toe-to-toe in court against the ACLU and the “Big Law” attorneys who, in the aftermath of Roe, constantly sued to strike down even the most minimal regulations of abortion. Working with law professor John Gorby, he hired two recent law-school grads, Patrick Trueman and Thomas Marzen, and set them to work, litigating in federal court in Chicago, and assisting state attorneys general elsewhere to defend pro-life legislation.

AUL’s main chance quickly arrived, when in 1977 it successfully intervened in litigation in New York and Chicago, seeking to invalidate federal and state versions of the Hyde Amendment, greatly restricting the public funding of abortion. (Among its clients were James F. Buckley and a black Chicago ob-gyn, Jasper Williams.)

To defend Hyde before the Supreme Court, Horan tapped Victor G. Rosenblum, professor of law and political science at Northwestern, a stalwart liberal whose devotion to civil and human rights embraced the unborn and those at risk of infanticide and euthanasia. Both the U.S. solicitor general (representing the pro-Hyde position of the Carter administration ) and Illinois ostensibly defended the funding restrictions. But during a critical meeting at the Justice Department prior to the 1980 oral argument, Rosenblum pressed for substantial changes in the government’s argument, ultimately obtaining the crucial votes of Roe justices Potter Stewart and Lewis Powell to uphold Hyde.

Henry Hyde (R., Ill.) himself, too, was indispensable to all of these efforts. While every historical pro-life organization can claim him as “godfather,” he had a special regard for the pro-life lawyers who won his victory.

Yet, victory in the funding cases left in place the absolutist version of Roe invalidating virtually all manner of abortion regulation; the death in 1982 of efforts to amend the Constitution to eliminate Roe seemingly closed off the movement’s options.

The door opened again in 1983, with Sandra Day O’Connor’s dissent in City of Akron v. Akron Center for Reproductive Health: There, the newest Supreme Court justice proclaimed that Roe was “on a collision course with itself,” owing in part to advances in neonatal medicine. AUL’s lawyers, led by Horan and its executive director, Paige Comstock Cunningham, seized O’Connor’s dissent — and the potential for President Reagan to appoint more Roe-skeptical Justices — to host a conference in March 1984 with the provocative title “Reversing Roe v. Wade through the Courts.” There, a who’s who of American and international legal scholars (John Finnis, John T. Noonan, Jr., Kenneth Ripple, Joseph Dellapenna, Rosenblum) laid out a precise strategy to attack the 1973 decision on its own terms, by exploding the myths of history propounded by Justice Harry Blackmun (through his amanuensis, Cyril Means), documenting the frequency with which the Supreme Court has recognized and reversed its erroneous interpretations of the Constitution, and counseling the wisdom of an incremental approach reminiscent of that followed by Thurgood Marshall and the NAACP Legal Defense Fund in the years leading up to Brown v. Board of Education.

The genuine diversity of the “Reversing Roe” architects is self-evident. Noonan and Rosenblum (notwithstanding the former’s appointment to the Ninth Circuit by Reagan) were nobody’s idea of jurisprudential “conservatives.” Dellapenna is personally pro-choice, while Finnis argued in an amicus brief in Dobbs that the Constitution mandates federal and state protection of the unborn.

The conference ended up in book form (more disclosure: I co-edited and contributed a chapter), reflecting by its 1987 publication date two singular developments: the “high-water mark” of Roe absolutism in Thornburgh v. American College of Ob. & Gyn. and, in a brilliant and prescient chapter by Brigham Young University law professor Lynn D. Wardle, the “Rehnquisition” that accompanied Reagan’s appointment of the new chief justice, also in 1986. This presaged, of course, the “Borking” of Reagan’s next, supremely qualified nominee to the High Court and the turmoil of SCOTUS nominations since, including the Brett Kavanaugh hearings, the “handmaidening” of Justice Amy Coney Barrett, and the “reap the whirlwind” fulminations of Majority Leader Chuck Schumer.

Abortion and the Constitution concluded with the sober reminder that, before Roe could be dismantled, Thornburgh would have to be reversed. Ironically, the fractured and lamentable decision in Casey (1992) did just that, reversing the 1986 precedent by upholding almost identical provisions of the Pennsylvania Abortion Control Act — further evidence that constitutional error can be corrected, and promptly. Indeed, for all the hopes dashed, constitutional law further deformed, and — most importantly — lives lost as the result of Casey, the pro-life legal movement’s victory in the substance of that case portended the ultimate demise of Roe. Justice Blackmun in dissent saw this; it took the decades of evolution from “safe, legal, and rare” to “no forced birth” for the Court to realize that ultimately there is no middle ground in constitutional law between the absolutism of Roe and the truth that no other claimed constitutional right involves the destruction of human life.

None of this was easy to see in 1992. Many concluded that the “reversing Roe” strategy had run its course, that incremental “chipping away” had failed, and that frontal attacks on Roe were necessary. Nothing is to be gained now by reliving those internecine debates. What should be recalled, however, is that the pro-life legal movement, at AUL and elsewhere, never stopped at abortion. Horan, for example, saw the need for prophylactic measures to prevent a Roe of euthanasia, pressing into publication a book and numerous law-review articles to subvert the type of invented-for-the-occasion reasoning that undergirded Roe.

Nonetheless, both the Second Circuit and the en banc Ninth Circuit (overruling an outstanding panel decision written by John Noonan) bought the euthanasia proponents’ claim of a “liberty right” to physician-assisted suicide. The Supreme Court unanimously reversed both circuits, following the historical and jurisprudential script laid out in this measured pro-life scholarship. And, as Wesley Smith noted with delicious irony, the Court’s 1996 decisions in those cases laid the groundwork for Dobbs to conclude that a right to abortion is in no way essential to a “scheme of ordered liberty” or “objectively, deeply rooted in this Nation’s history and tradition.” One might add that, if the State can prohibit physicians from killing patients at their own request, is it not obvious that it can restrict the killing of the unborn, who have no voice?

In the “dark years” between Casey and Dobbs, many kept the pro-life legal flame alive. None was more important than frequent NRO contributor Clarke Forsythe, whose Abuse of Discretion lifted the lid on the machinations behind Roe v. Wade, and who single-handedly developed the modern case for laws punishing fetal homicide and fetal assault. (Forsythe has also written a forthcoming book documenting in great detail what can only be summarized here). Robert Destro, who as a law student under John Noonan had unearthed early common-law evidence of prosecution for abortion, mentored many young pro-life attorneys after the deaths of Horan and Rosenblum. Mary Ann Glendon by scholarship, sterling example, and mentorship inspired a generation of female (and male) pro-life attorneys within and beyond the hallowed confines of Harvard Law. Hat tips as well to Notre Dame’s Gerard Bradley and O. Carter Snead, who continue in that essential service. James Bopp and other attorneys associated with the National Right to Life Committee were indispensable in the efforts to enact pro-life legislation at the state level, and complemented AUL’s scholarship with the journal Issues in Law & Medicine. Attorneys associated with Alliance Defending Freedom, the Becket Fund for Religious Liberty, the United States Conference of Catholic Bishops, and various state Catholic conferences were critical allies.

Editorial pride will not prevent me from stating a simple fact: Virtually every plank of Dobbs’s decimation of Roe is found in print either in Abortion and the Constitution, in Forsythe’s subsequent history of Roe, or in more-recent work by the book’s contributors, notably Dellapenna. Truly, the “muscle” of the broader conservative legal movement, the courage of state legislatures, and the kept promises of politicians such as Trump and McConnell played a vital role. They ran with the script and should be lauded for that — but please do not forget those who wrote the script.

Many others will find their names missing here; to them, my apologies and thanks. Others will recall (I hope with a wry smile) that not all was smooth in their various discussions and debates. No doubt those fruitful discussions will continue as the task of defending life continues, this time with rules that promise more of a fair fight. As has been said, this is no end, or beginning of an end, but the end of the beginning. The intellectually, ideologically, and religiously diverse cohort of the historical pro-life legal movement should be not merely celebrated but emulated, as this task proceeds.