Only Federal Preborn Protection Can Stop the Tyranny of Pro-Abortion State Constitutions
And only a conservative movement that cares about babies more than a failed ex-president can do anything about it.
The Left’s resounding victory in Ohio last week that enshrined unlimited abortion in the state constitution presents the pro-life movement with the daunting task of developing new messaging and legislative strategies to transform American culture over the long term, and a no-less-daunting technical challenge, the magnitude of which I’m not sure has fully sunk in yet: what to do about a future in which abortion-on-demand becomes functionally irreversible in a steadily increasing number of states.
Ohio Republicans are floating legislation to deny the state judiciary any jurisdiction over the new amendment and to take advantage of its “ambiguous” language to determine “what, if any, modifications to make to existing laws based on public hearings and input from legal experts on both sides.” But it’s hard to imagine such efforts accomplishing anything more than preserving some bans on abortions after viability and maybe some non-ban informed-consent and maternal safety regulations, ultimately leaving the vast majority of abortions untouchable. Every little bit is worth pursuing, but this is no solution on its own.
Once the words “Every individual has a right to make and carry out one’s own reproductive decisions, including but not limited to decisions on [...] abortion” appear in a state’s constitution, no future act of the state legislature, executive order by the governor, or ruling by the state Supreme Court can do anything more than nibble around the edges. Other than an opposing constitutional amendment—ground on which pro-lifers will always be disadvantaged until something monumental changes—there is nothing pro-lifers can do at the state level.
Only federal law—whether an act of Congress or a prevailing interpretation of the U.S. Constitution—can trump a state constitution. Which means that, as much as some on the Right have dreamed of relegating it to the state level, there is no getting around the reality that abortion is ultimately a national issue.
To anyone with a firm command of the first principles involved, how could it be otherwise? The preborn are living, individual human beings. Intentionally killing them via abortion is a clear-cut violation of the individual human right to life. Life is the first unalienable right identified in the Declaration of Independence. The Fifth Amendment declares that “No person shall [...] be deprived of life, liberty, or property, without due process of law.” The Fourteenth Amendment explicitly forbids any state from “deny[ing] to any person within its jurisdiction the equal protection of the laws,” which “Congress shall have the power to enforce, by appropriate legislation.”
And contrary to the late and usually-great Justice Antonin Scalia’s uncharacteristically-weak insistence that such protections only refer to “walking-around persons,” the historical evidence is clear that the Constitution was built on a legal tradition that recognized that personhood exists before birth (with the often-invoked “quickening” line nothing more than an evidentiary standard rooted in the limited medical knowledge of the time).
For more, look no further than the definitive treatment on the subject by pro-life attorney Josh Craddock:
By the time of the Fourteenth Amendment’s adoption [in 1868], “nearly every state had criminal legislation proscribing abortion,” and most of these statutes were classified among “offenses against the person” [...]
The Amendment was carefully worded to “bring within the aegis of due process and equal protection clauses every member of the human race, regardless of age, imperfection, or condition of unwantedness.” Senator Jacob Howard, who sponsored the Amendment in the Senate, declared the Amendment’s purpose to “disable a state from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty and property without due process.” Even the lowest and “most despised of the [human] race” were guaranteed equal protection. Representative Thaddeus Stevens called the Amendment “a superstructure of perfect equality of every human being before the law; of impartial protection to everyone in whose breast God had placed an immortal soul.” Representative James Brown simply put it: “Does the term ‘person’ carry with it anything further than a simple allusion to the existence of the individual?”
The primary Framer of the Fourteenth Amendment, Representative John Bingham, intended it to ensure that “no state in the Union should deny to any human being … the equal protection of the laws.” He described the Amendment as a remedy to the denial of basic human rights:
“[B]y putting a limitation expressly in the Constitution … so that when … any other State shall in its madness or its folly refuse to the gentleman, or his children or to me or to mine, any of the rights which pertain to American citizenship or to common humanity, there will be redress for the wrong through the power and majesty of American law.”
The first thing most minds go to when they hear this kind of talk is a Human Life Amendment to the U.S. Constitution, of the kind Ronald Reagan championed (and subsequent Republicans would largely ignore). But amending the Constitution is impractical under the best of circumstances, so much so that it’s only happened 17 times in our history (excluding the Bill of Rights), three of which directly stemmed from a civil war. To do so for an issue on which America is as divided as abortion wouldn’t be realistic until the culture has changed so much as to negate most of the need for the amendment. But there are other avenues.
The simplest in theory would be to get the U.S. Supreme Court to recognize that state laws permitting abortion violate the Fifth and Fourteenth Amendments, and therefore should be struck down. But as alluded to above, that faces a challenge from a counterintuitive source: the conservative legal establishment. GOP judicial selection is such a mess that we only got a simple majority to overturn Roe v. Wade, and the fact that even Scalia balked at interpreting the Constitution as anti-abortion tells us the uphill battle we’d have pursuing this through judges alone.
The most viable—though by no means quick or easy—path would be to renew our efforts to build support for a federal law such as the Life at Conception Act (which yours truly used to lobby for a lifetime ago with the National Pro-Life Alliance). For the purpose of neutralizing state pro-abortion amendments, such a law need not be a direct, federal abortion ban—the LCA, for instance, simply asserts a national right to life but otherwise leaves the details to separate legislation, overriding measures like Issue 1 and giving pro-life laws a major advantage in legal disputes.
And as for the Supreme Court’s potential squishiness, justices wouldn’t necessarily need to go out on the limb of declaring the Constitution anti-abortion; they’d just need to recognize Congress’s right to legislate on the matter. Indeed, contrary to common online talking points, Samuel Alito’s majority opinion in Dobbs didn’t say abortion is only for the states to decide; it said “the authority to regulate abortion is returned to the people and their elected representatives,” which encompasses both federal and state government. Even Brett Kavanaugh, who’s more moderate than Alito, expressly states in his concurring opinion that the Constitution “leaves the issue for the people and their elected representatives to resolve through the democratic process in the States or Congress” (emphasis added).
Leaving abortion to the states was never going to suffice as an endpoint to the issue, either philosophically or practically—federalism means letting states decide things that residents are free to accept or reject by moving to another state, not letting states deny basic rights to a segment of the population entirely at the mercy of others who want to kill them. Now that the abortion lobby is essentially weaponizing federalism against the preborn through state constitutional amendments, this should be clearer than ever.
Alas, we happen to be facing this threat not only at a time when parts of the Right would rather run away from the issue, which is nothing new, but when one of the loudest voices for compromise, one of those most invested with scapegoating the GOP’s problems on causes like life, happens to be a former president and self-declared avatar of the grassroots who is giving a classic establishmentarian impulse an undeserved veneer of counter-establishment legitimacy, amplifying the message’s poisonous influence through career incentives to excuse, promote, or ignore whatever he says. So before beginning any of the hard work of pursuing a new pro-life strategic framework, conservatives will first have to decide how important the pro-life cause really is to us.