Trump’s stumble onto the right abortion position obscures pro-lifers’ need to win the argument.
Trump’s stumble onto the right abortion position obscures pro-lifers’ need to win the argument.
‘T he States may, if they wish, permit abortion on demand,” Justice Antonin Scalia wrote in his coruscating 1992 opinion, mostly dissenting, in Planned Parenthood v. Casey. Abortion could also be banned, just as the states have banned bigamy, even though doing so would render unavailable a choice — “a ‘liberty’ in the absolute sense” — for which some reasonable people would otherwise opt. This is because a liberty in the absolute sense is not “a liberty specially ‘protected’ by the Constitution.”
As to the matter of abortion, the late great jurist concluded, “the Constitution says absolutely nothing about it.”
When the Constitution is silent, and when “the longstanding traditions of American society” have permitted a choice or a practice, such as abortion, to be “legally proscribed,” then it may be prohibited. Or it may be permitted without restriction. At issue is law, not morality — and make no mistake, the two are discrete codes of conduct, though they powerfully influence one another. In law, “where reasonable people disagree the government can adopt one position or another.” In American democracy, our default method for resolving the most important questions confronting the body politic is “citizens trying to persuade one another and then voting.”
With most such questions, that method should be carried out at the state level. The federal government is one of limited powers, conferred on it by the Constitution’s express commands. Beyond that, it is supposed to be restrained to only those unmentioned powers that must be inferred, lest the express commands be nullified. When the Constitution says absolutely nothing about a subject, then it is not a subject as to which We the People of the United States vested authority in the federal government.
If anything is meant by state sovereignty, the bedrock of our federalist system, it means the states retain in their respective territories authority over matters not expressly delegated to Washington. Those matters have always been understood to include health and safety. That is why, pre-Roe, the action on abortion was at the state level.
It was big news this week when Donald Trump publicly adopted this states’-rights position. I say “this week” advisedly; after all, who knows where the notoriously transactional former president will be by next week if, say, the winds out of Maricopa County blow the polls in the direction of a Roe-era abortion-on-demand revival?
To my mind, Trump’s position happens to be the right one. Without having taken it for the right reasons, Trump has merely taken it for right now. And for right now, his contortions are not about the substance of abortion policy or constitutional law. They are about teeing up the 2024 campaign to dilute the potency of a controversy — the post-Dobbs return of ground-up abortion politics — that flusters Republicans while galvanizing Democrats. Trump’s objective is not to get abortion right; it is to de-escalate abortion politics, the better to rivet voters to Biden’s border catastrophe, the consequent crushing of state and municipal services and quality of life, surges in crime and prices since 2019, stifling regulation under the lunatic guise of greening the economy, and the gnawing sense that the country is going off the rails.
Pro-lifers are unhappy about this. Being one, I can say, “understandably so.” But in politics, unhappiness can be expressed in healthy and unhealthy ways.
The healthy way is the Thatcherite approach: You win the argument first, then you win the vote on the issue. The conservative legal movement grasped this — that’s how we finally got to Dobbs. For pro-lifers in general, though, Thatcher’s wisdom has been more elusive. That’s because they are at a huge disadvantage compared with anti-Roe lawyers.
Though it took almost a half century, the legal argument was easier to win because Roe v. Wade and the cases ironically called its “progeny” were atrocious constitutional law. That’s not because (or at least primarily because) abortion was at issue; it owes to how much constitutional principle had to be torched for unelected federal lawyers-in-robes to impose their loopy notions of “liberty” on the country. Perhaps abortion is the only context in which that would ever have happened, but the legal wrong was jurisprudential; it was not the green-lighting of abortion on demand, up to the moment of birth — or, in some even more gruesome iterations, during or after birth, as the Court’s dissents in the so-called partial-birth abortion case, Stenberg v. Carhart (2000), relate in stomach-churning detail. As Justice Scalia explained, the Constitution does not speak to abortion.
For pro-lifers, the atrocity is the willful taking of innocent human life, not the legal legerdemain under which abortion is rationalized. The half-century legal battle that led to last year’s Dobbs ruling obscured how hard that fundamental argument will be to win. It is the work of generations. And the work of generations can only triumph from the ground up; there are no shortcuts.
Which brings us to the unhealthy ways of coping with political unhappiness. As the Left has shown, this involves top-down edicts that impose progressive pieties on unwilling but intimidated masses. The Left doesn’t mind winning that way because it doesn’t much care about a free society as long as, from a leftist perspective, it is a society adherent to those pieties. But for those fighting to preserve our constitutional republic founded on liberty, winning the vote has to mean first winning the argument.
Realizing that this would take generations because the public simply is not where pro-lifers are on the origin and sanctity of human life, many pro-lifers suggest the Left’s preferred route: top-down federal abortion legislation. After decades of pleading with the Supreme Court to return this issue to state democratic processes, federalization advocates want to claim, contra Scalia, that abortion is a federal issue after all.
Most of these advocates are well-meaning — they want to save lives. Some are political schemers who seek a federal “ban” after 15 gestation weeks — i.e., the kind of “ban” that permits about 95 percent of abortions — in order to nullify the power of an issue that favors Democrats (because Republicans haven’t figured out how to talk about abortion in a manner that spotlights the monstrousness of the Democrats’ “any abortion at any time” dogma). But to my mind, the federalizers are wrong, well-meaning or not.
As with progressive schemes, usually premised on the canard that the Constitution is “organic,” the federalization advocates on the pro-life side would rely on novel, extravagant constitutional interpretations to bring unborn human life within the ambit of the commerce clause, or of the 14th Amendment’s due-process and/or equal-protection clauses. I agree with such scholars as John Yoo, Jonathan Adler, and Ilya Somin that these theories are flawed. Perhaps worse, however, they would lead to consequences that pro-lifers and conservatives should dread.
Obviously, any legal theory that expands constitutional provisions beyond their original understanding and traditional application is going to be exploited by progressives to usher in their own preferences. It would thus undermine the signal victory of the conservative legal movement, making its opposition to the “organic” Constitution significantly less credible. But most immediately and practically speaking, we would lose the vote, because we are very far from winning the argument.
If a federal abortion “ban” is enacted into law, it is easily foreseeable that Democrats — with an actual or at least effective congressional majority on this issue, and with either a Democratic president or a “pragmatic” Republican president who just wants the issue to go away — are going to ease the restrictions. There would be something deceptively referred to as a “ban” in the U.S. Code, but it would greenlight the vast majority of abortions — and in reality, that would become all abortions once Congress got through tacking on “exceptions” based on some vague notion of the “health of the mother.” In the end, we’d end up with a Roe-esque regime that endorsed abortion-on-demand — except now we would have lost any credibility in contending that, under the Constitution as properly understood, abortion is a state-law issue.
What’s more, even if I am wrong about how quickly a federal “ban” would go wrong for pro-lifers, a big problem with top-down edicts is that they create norms around which society’s expectations are set. Again, the federal “ban” now being bandied about would authorize the vast majority of abortions. Once that was enacted into law, it would become harder to enhance the restrictions and save more lives. Abortion would become a legislatively settled fact of national life in a way that the unstable outcome wrought by judicial imperialism never was.
After marshaling the plagues on American governance that stemmed from the federalization of abortion, including the politics infused into judicial confirmations and decision-making, Justice Scalia made these observations in Casey about the pre-Roe state of play:
Profound disagreement existed among our citizens over the issue [of abortion] . . . but that disagreement was being worked out at the state level. As with many other issues, the division of sentiment within each State was not as closely balanced as it was among the population of the Nation as a whole, meaning not only that more people would be satisfied with the results of state-by-state resolution, but also that those results would be more stable. Pre-Roe, moreover, political compromise was possible. Roe’s mandate for abortion on demand destroyed the compromises of the past, rendered compromise impossible for the future, and required the entire issue to be resolved uniformly, at the national level.
An abortion resolution at the national level would be a major setback for life as things stand today — when we are far from winning the argument, when the majority of Americans believe abortion should be legally available in at least some rare instances, and when many more support legal availability in most circumstances than support a categorical ban. Obviously, I hate to say that, but it is a fact.
Donald Trump could stick with the position he took this week. Or he could change on a dime as the politics change. It won’t make any difference in terms of stark reality. To protect the unborn, pro-lifers have to win the argument in the culture. They have to win it at the state level, where significant victories that are unattainable at the federal level have been and could continue to be won. The most likely short-term result of federalizing the issue would be to erase those victories.
Again, there are no shortcuts here. If Republicans want to help, they should come out from under their desks and learn to speak effectively about the Democrats’ barbaric extremism, rather than conspiring to make a tough issue go away. Because it’s not going away.