Donald Trump gave us a Supreme Court that could overturn Roe v. Wade. But the fight against abortion may leave the current G.O.P. behind.
The pro-life movement’s multidecade strategy, up to and including its fraught bargain with Donald Trump, appears to have succeeded. Thanks to the Trump White House and Mitch McConnell’s Senate, there is now a 6-to-3 conservative majority on the Supreme Court, vetted by conservative legal activists and committed to principles of constitutional interpretation that seem to require sweeping Roe v. Wade away, or at least modifying it into obsolescence.
Yet instead of preparing to claim victory, in the last two weeks part of the anti-abortion movement has fallen into an acrimonious debate over a radical proposal — from the Australian philosopher and Notre Dame professor John Finnis, in the journal First Things, arguing that unborn human beings deserve protections under the 14th Amendment to the U.S. Constitution.
The political implication of Finnis’s argument is that the pro-life movement’s longtime legal goal, overturning Roe and letting states legislate against abortion, is woefully insufficient, and in fact pro-life activists should be demanding that the Supreme Court declare a fetal right to life.
Finnis is not the first person to make that case, but the controversy it’s incited this time has been more intense, and in one sense strangely timed: An apparent hour of victory seems like an odd moment to fall to Twitter wrangling over a constitutional claim that most conservative jurists, from Robert Bork to Antonin Scalia, have consistently rejected.
But abortion foes actually have good reason to feel unsettled and uncertain rather than triumphant. First, there is the strong possibility that the 6-to-3 conservative court does not have a majority of justices who particularly want to apply their principles to something as fraught as abortion, as opposed to the comforting blandness of administrative law. Between the popularity of Roe in polling and the fear of liberal backlash and potential court-packing, some combination of John Roberts, Neil Gorsuch and Brett Kavanaugh may decide to follow the rule of institutional self-protection rather than their principles, or find ways to make only the smallest-possible edits to the court’s existing abortion jurisprudence.
Indeed, right now there’s a case pending with the high court that would put Roe to a test: Dobbs v. Jackson Women’s Health Organization, involving a Mississippi ban, with limited exceptions, on abortion after 15 weeks (when the fetus is pear-size and kicking tiny legs) that a district court struck down. Yet the case has been pending since September, suggesting that there may not be even four justices — the number required to take the case — who are ready to issue a controversial ruling. And pro-life skeptics of the conservative legal establishment are already citing Dobbs to suggest that the just-overturn-Roe strategy might be poised to fail again.
This isn’t the only reason for pro-life unsettlement. The movement also has to be aware that even if its long-running legal strategy is about to succeed, its strategies and prospects in a post-Roe world are uncertain at best — an uncertainty that shadows other conservative policy debates, like the argument over Mitt Romney’s proposal for a monthly child benefit, as well.
Americans have deep qualms about abortion, and amid the general liberal turn of the last few decades, polling on the issue has been remarkably stable: Support for Roe coexists with support for restrictions and regulations that Roe does not permit, the country splits almost evenly over whether to identify as “pro-life” or “pro-choice,” and most Americans fall into a conflicted middle ground.
This means that while overturning Roe would probably prompt a pro-choice backlash in reaction to the court’s decision, there would be ample opportunities, in a world where abortion is returned to the democratic process, to make a pro-life case.
But the anti-abortion cause is closely linked to a culturally bunkered Republican Party and a weakened religious right, it has few media megaphones and weak financial backing, and a lot of the country just seems not to want to think too much about abortion and to punish the party that forces it to do so. So it’s extremely easy to imagine the end of Roe leading to a little more state regulation over all (mostly limitations in the second trimester, along the lines of many European countries), but then for the few states that go further to find themselves boycotted and besieged, leaving the goal of ending abortion nationwide as far away as ever.
Especially because the plausibility of that goal depends on whether the pro-life movement can prove — through very literal policy demonstrations, not just rhetoric — that it can protect and support the pregnant women who would no longer get abortions in the world that it desires. The pro-choice side insists that these women’s independence and well-being and equality depends on a right to end a life that, were it wanted, would be called by name and celebrated with ultrasound photos on the fridge. Against that argument the anti-abortion movement needs more than just the ultrasound photo: It needs to prove the pro-choice premise wrong.
The movement’s wiser leaders know this. Last year, for instance, The Atlantic’s Emma Green profiled Cheryl Bachelder, the former chief executive of Popeye’s and a rare pro-lifer in the C-suite world, who was working with other anti-abortion leaders “to brainstorm all the community support systems that would need to be stronger in a world where abortion is illegal: mental health services, addiction-recovery programs, affordable child care.” Green also reported that the Charlotte Lozier Institute, the research arm of the pro-life Susan B. Anthony List, has been compiling a database of state resources for pregnant women in preparation for the hoped-for end of Roe.
But, of course — as Green noted with dry understatement — actually getting a major expansion of social services in states that might conceivably ban abortion would require a different Republican Party than the one that exists today.
Over the last month, for instance, many socially conservative Republicans have been critiquing Romney’s proposed family benefit on the grounds that it might lead to more nonworking single mothers. This a reasonable worry, but it’s definitely the case that making abortion illegal would lead, in the short run, to more women raising kids in difficult circumstances. (The long-term cultural effects are a separate question.) And then it’s also the case that family grants like the Romney plan have been shown to reduce abortion rates when used in European countries.
Put these realities together, and you get a conclusion that most Republicans have not internalized. To restrict abortion in a just and sustainable way, to reduce both the personal hardship of parenting and the incidence of illegal abortion, you probably need some kind of policies like Romney’s plan no matter what the consequences for work incentives or single motherhood. More unintended births to poor women in the near term are a necessary price of pro-life victory — with the lives of the babies themselves the reason that price is very much worth paying.
These realities can seem very remote from the legal theorizing involved in the 14th Amendment debate. Suggesting that judges should endorse an anti-abortion reading of the Constitution solves none of the pro-life movement’s immediate problems. If today’s Republican-appointed jurists are too politically timid to merely return abortion regulation to the states, it’s much harder to imagine them ever issuing a sweepingly pro-life ruling that, under current alignments, would risk attempted nullification from many liberal state governments. And an academic argument over the 14th Amendment’s original meaning hardly helps the pro-life movement address the immediate social-welfare questions it will need to answer should Roe fall.
However, there is a way in which the 14th Amendment argument and the questions raised by Bachelder’s brainstorming or Romney’s family plan are actually closely linked. For a long time the core pro-life position — not that abortion should be a little more regulated or a little more culturally disfavored, but that it should be truly forbidden in almost every case — has been a symbol and an abstraction: an idea that Republican presidents can very notionally support, a cause that judicial appointees can benefit from without directly endorsing, an ideal that Republican state legislators can invoke without having to compromise their libertarian principles to make it real.
But now, with the pro-life movement hovering in a strange limbo between a longed-for victory and another judicial defeat, the question looms up: Is anti-abortion sentiment notional or real?
If it’s mostly notional, then a betrayal by Roberts or Gorsuch won’t change much about conservative judicial politics. If it’s mostly notional, then even the end of Roe will change abortion politics only at the margins and in deep-red states.
If the end of abortion is a real goal, though, then yet another defeat at the Supreme Court should prompt a radical reassessment of the movement’s existing Federalist Society and G.O.P. alliances.
And a victory at the court should likewise widen the pro-life imagination well beyond Republican politics-as-usual, toward an all-options-on-the-table vision of how public policy could make an abortion ban feasible, popular, enduring.
In either scenario, there is something to be said for a pro-life movement that talks less in the language of partisanship and proceduralism and sounds more like the utopian and not simply conservative cause that its logic ultimately requires it to be.
In this sense, saying “yes, the Constitution that protects ‘persons’ should protect the hidden and helpless person in the womb,” and “yes, we will pay whatever price in spending and social support that this principle requires” are not contradictory positions: They are the same argument on different fronts.
It’s hard to imagine a future where a Supreme Court imposes the full pro-life position on an unwilling country. Whatever its constitutional merits, the 14th Amendment idea requires that public opinion be moving in its direction first.
But there is an imaginable future where making arguments that stress that the pro-life movement really means it, that the lives of children and their mothers together matter more than any other principle, is part of what finally persuades the country to choose life.