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Do It Again

On what happens after Roe v. Wade.

When my wife was expecting our first child, one activity we looked forward to was reading to our new son. Soon we found ourselves re-reading the short stories, children’s poems, and adventure tales that populated our own childhoods. Today, on the bookshelf sits a well-worn collection of Aesop’s Fables. Having read it many times with the boys, I now find myself recalling these stories and their morals even when I am in my law office working through a patent application or a trademark dispute.

When I think about the future of the battle against abortion following the overruling of Roe v. Wade, I recall two of Aesop’s fables in particular. Both involve thirsty birds—a rash pigeon and a thoughtful crow. In the first, the pigeon sees a basin of water in a painting. The pigeon, not realizing that the water is not real, hurriedly flies in to sip the water. He arrives with a loud stir, only to crash into the painting and fall to the ground with a broken wing. The moral: Zeal should not outrun discretion. In the second, a crow finds a pitcher of water on the ground, but the water level is too low and the neck too narrow for the crow to drink. Looking around, he spies several pebbles. He picks them up one by one and drops them into the pitcher, slowly raising the water level until at last the crow can quench his thirst. Little by little does the trick.

The first phase in the struggle over abortion is over. We should take a moment to recognize just what a struggle it was. The Supreme Court has overruled Roe v. Wade, Planned Parenthood v. Casey, and the constitutional right of a mother to kill the child carried in her womb. It has been fifty years in the making for a mass popular movement determined at each step to make the dignity of life a core political issue. We have prayed and fundraised and barnstormed and persuaded candidates to run on a pro-life platform, so that they could become state legislators who would pass abortion-restrictive laws, which would be defended by attorneys committed to developing legal theories to advance the pro-life cause and argued before judges disposed to adopt those legal theories, judges who themselves had been nominated by presidents elected on popular support for vocally championing the cause of life and approved by sympathetic senators that guided those nominated judges through the professional hazing ritual that is the confirmation hearing.

Aside from that political effort, we have stood praying outside abortion clinics in heat, rain, and snow. We rejoiced when a mother walked out of the clinic and told us she didn’t go through with the procedure and asked, with equal anxiety and hope, where she could get support. We have collected diapers, passed along clothes, bought bottles and formula, and donated books, rattles, and toys. We have helped children through the adoption process and many of us have actually adopted those children. And we have cried with and comforted those women who realized too late and with regret the gravity of what they had done.

Congratulations. Now get ready to do it all over again. 

We’ll need to remember the same tactics that got us this far: perseverance and planning. Little by little does the trick. Let not our zeal outrun our discretion. Every plan begins with the intended result, and our goal remains the same as when we began on January 22, 1973. We seek to make abortion illegal in the United States. But not only do we want to make it illegal, we want a culture that will, in the words of Pope John Paul II, “respect, protect, love, and serve life, every human life!” To get where we want to be, we must also acknowledge our current position. Here we must be brutally honest. In many ways we start further from our goal than we did in 1973, and the terrain is more treacherous.

Let’s start with the good news. On the day the Supreme Court issued its opinion in Dobbs v. Jackson Whole Women’s Health, which overruled Roe and returned abortion policy to the states, we had five reliable Supreme Court justices who will likely uphold just about any restriction that may be challenged in the near future. We have numerous like-minded federal, district, and appellate court judges who will cut short attempts to get challenges up to the Supreme Court and help build out a body of decisions about the meaning of “rational basis” review for abortion restrictions.

Thirteen states (Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, and Wyoming) have enacted “trigger bans” prohibiting all abortions or with exceptions for life, health, and/or rape, and these have or will shortly come into effect now that Roe is overruled. Six other states (Alabama, Arizona, Michigan, North Carolina, West Virginia, and Wisconsin) have pre-Roe bans that will now come back into force unless repealed by state legislatures. And four states (Alabama, Louisiana, Tennessee, and West Virginia) explicitly reject a right to abortion by constitutional amendment. In many states dominated by Republicans, numerous state legislators and governors are willing to spend their political capital enacting new bans or restrictions. We also have the on-the-ground networks and organizations that have long done the hard work of personal persuasion, donation drives, counseling, and organizing that has sustained the pro-life movement. (In contrast, the pro-abortion movement in many conservative states has severely atrophied, as its late and confused response in 2021 to Texas’s six-week ban and private enforcement mechanism showed.) And lastly, we have momentum from the Dobbs decision itself. 

Now for the bad news. Despite the monumental pro-life campaign since 1973, national attitudes towards abortion have remained largely static. In 1975, twenty-one percent of Americans told Gallup that abortion should be illegal in all circumstances. In 2021, it was nineteen percent. In contrast, those wanting abortion legal under any circumstance went from twenty-two percent in 1975 to thirty-two percent in 2021. The broad middle, supportive of at least some restrictions but not an outright ban, went from fifty-four percent to forty-eight percent.

And those attitudes have become tied to partisan politics. In the 1970s and 1980s, pro-lifers could find support from both Democrats and Republicans for enacting abortion restrictions. It was easier to present abortion restrictions as bipartisan and to find agreement. Today, there is one pro-life Democrat in each of the House of Representatives and the Senate. There is no expectation of party compromise on abortion policy at either the state or federal level. This will make it more difficult to enact even mild restrictions on abortion access in states controlled by Democrats or in states with mixed party rule.

Pro-life attitudes have also become more regionally homogenous. According to average polling data published by the New York Times, only sixteen states have a majority of residents that believe abortion should be mostly illegal, and another five have a plurality of such residents. All twenty-one states are in the South, the Great Plains, and Mountain West. Louisiana is the most pro-life state in the country—fifty-nine percent believe abortion should be at least mostly illegal. Of the thirteen states with trigger bans, only Oklahoma is not among this group of majority or plurality pro-life states. But many states where residents want abortion to be at least mostly legal have very high margins in support. In fourteen states, over sixty percent of the residents think abortion should be mostly or always permitted if desired. Among these are the populous states of New York, New Jersey, Maryland, and Massachusetts (where abortion support reaches seventy percent, the highest in the country). There is very little low-hanging fruit left where pro-lifers can expect to have reasonable success in banning or severely restricting abortion in the short term. The road to getting abortion restrictions enacted on the West Coast, the Mid-Atlantic, and New England is going to be arduous and require changing many hearts and minds.

Pro-abortion attitudes have also radicalized. Gone are the days of abortion being “safe, legal, and rare.” In many places abortion is no longer something to be hidden away. Leading abortion activists invite women to “Shout your abortion,” and Oscar-winning actresses tearfully give thanks from the award stage for the Faustian bargain they made by having an abortion at a young age so that they could go on to have lucrative careers. This is the conviction that abortions are necessary, correct, and even somehow life-affirming. In his essay proposing a two-amendment pro-life strategy in 1981, William Marshner recognized that this conviction that abortion is “the right thing” is a thought to which “majorities are seduced.” Forty years on such thoughts have intoxicated the pro-abortion movement to the point that the Lieutenant Governor of Pennsylvania John Feldman recently tweeted that abortion is “sacred”—a truly horrifying thought. 

In states where pro-lifers have the longest trek, they also face a hardened and radicalized opposition. Colorado, New Jersey, Oregon, and Vermont have codified a right to abortion throughout pregnancy. Twelve more states (California, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Nevada, New York, Rhode Island, and Washington) statutorily permit elective abortion at least up to viability. Courts in eleven states (Alaska, Arizona, California, Florida, Iowa, Kansas, Massachusetts, Minnesota, Montana, New Jersey, and New Mexico) have ruled that various state constitutional provisions independently secure a right to abortion to some degree.

It is plain that in Dobbs the Supreme Court did the bare minimum we could have asked for. Yes, it overruled Roe, but the opinion limited itself to Roe’s myriad and manifest defects in legal reasoning. Dobbs does not take up the invitation of several amicus briefs that sought to establish fetuses as persons under the Fourteenth Amendment entitled to certain basic rights, whether on originalist or natural law grounds. In fact, the Court hardly articulates a reason for promoting the dignity of the child or the child’s right to life beyond acknowledging that it is something about which the country is fervently divided.

The Court could have chosen a different path, one exemplified by the West German abortion case in 1975. Two years after Roe, the German Constitutional Court interpreted statements in its constitution that “human dignity shall be inviolable,” and that “every person shall have the right to life and physical integrity,” as obligating West Germany to protect the fetal life developing in the mother’s womb, even against the mother, for the duration of the pregnancy. The German court held that “it should not be forgotten that developing life itself is entrusted by nature ... to the protection of the mother. To reawaken, and ... to strengthen the maternal duty to protect, where it is lost, should be the principal goal of the endeavors of the state for the protection of life.” The court permitted the state to withhold punishment for abortions undertaken where the woman’s life was in danger or cases of similar gravity, and West Germany subsequently established a system requiring doctor examination, counseling in favor of the child’s life, and a three-day waiting period. Nevertheless, the court held that “in the extreme case, ... the lawgiver can be obligated to employ the means of the penal law for the protection of developing life.” 

If only our Supreme Court had recognized in Dobbs an affirmative obligation of the state to protect the life of the child as well as the life of the mother. We should not neglect this “teaching function” of law, whereby the law provides the bounds for acceptable behavior and molds peoples’ attitudes over time. In 1980 in the US there were twenty-nine abortions per one thousand women of childbearing age; in Germany, there were nine. How many abortions could have been prevented had the Supreme Court adopted a position similar to that in West Germany?

If the justices think they will be out of the abortion business they are wrong. I anticipate numerous challenges from progressives. These will include serious questions, such as resolving conflicts between the application of state laws and any federal laws, and ridiculous ones, such as whether the Thirteenth Amendment’s ban on slavery makes a total abortion ban unconstitutional. 

Still, many of the coming legal fights will occur in the state courts. Four states have explicitly rejected the right to an abortion, while eleven state courts have found a right to abortion in their constitutions already. We will need to overturn those provisions while articulating state-specific reasons why their constitutions protect the life of the child. Our strategy must be multifaceted. We must seek to change hearts and minds. We must make political alliances where possible to build support for reasonable, and increasingly restrictive, abortion laws. We will have to amend state constitutions. We will continue asking the Supreme Court to not merely be neutral, but to obligate the state to protect the child’s life.

Only this “whole of society” approach will do. For even if we could enact perfect laws, a community not ready to accept them will despise both the laws and the virtues they promote. As St. Thomas Aquinas writes in his Treatise on Law, “The purpose of human law is to lead men to virtue, not suddenly, but gradually. Whereupon it does not lay upon the multitude of imperfect men the burdens of those who are already virtuous. ... Otherwise these imperfect ones, being unable to bear such precepts, would break out into yet greater evils.” In other words, we must seek laws that lead the states that are strongly pro-abortion to true human dignity, and we must also prepare them as a community to joyfully accept that dignity. Little by little does the trick.

Accordingly, I propose the following points towards a comprehensive strategy:

1. Continue to pray. We know that prayers for the conversion of hearts and changing individual decisions is even more effective than our political activity. After all, for those who live in radically pro-abortion states, Dobbs does not change much on the ground at all. The aggressively pro-abortion laws will remain in place for some time. Keep organizing, keep praying, and keep fighting. Those of us in pro-life states will support you with our prayers, dollars, donations, and time. 

2. If we can move the needle in the direction of pro-life support by even five to ten percent, there are about ten states that would flip from majority or plurality pro-abortion to pro-life, and we increase the potential for constitutional amendments. We must increase the pro-life outreach in our Catholic parishes, especially since forty-eight percent of Catholics believe abortion should be mostly legal. The seven states with the highest percentages of Catholics are Rhode Island, Massachusetts, New Jersey, New Mexico, Connecticut, New York, and California—and all seven are among the states with the laws most permissive of abortion. That is frankly shameful. Not everyone is a politician or an activist, but we can all redouble our commitment to changing hearts in our pews.

3. An average first trimester abortion costs about five hundred dollars in medical fees. An adoption through a private agency costs at least twenty thousand dollars. Even adoption of a foster child through a public agency averages at least three thousand. We need to lobby for government subsidies for adoptive parents to reduce obstacles and encourage adoption.

4. Conversely, in states that have already enacted trigger bans, we need to prepare the ground for cross-party coalitions that demonstrate the pro-life movement’s commitment to respect for all life. I know of many, many good pro-life people who take the “all life” commitment to heart and run numerous charities assisting mothers and newborns. But we must acknowledge the truth that the states most committed to outlawing abortion also have welfare and healthcare systems that let too many mothers and children down. Louisiana, for instance, has the second highest maternal mortality and infant mortality rates in the country. Committing resources to protecting mothers and infants is not only the right thing to do, but it will also undercut the allegation that we care only about babies within the womb and provide examples to which our friends in more pro-abortion states can point. Start building those political bridges to Democratic politicians and find common ground to buttress maternal and infant welfare.

5. In states that are pro-life but without trigger bans, we need some quick legislative wins for maintaining the momentum. Indiana and Nebraska have pro-life majorities or pluralities but no ban in place. Enact bans there, as soon as is politically feasible. Kansas also has a state constitutional amendment removing a right to abortion up for vote in August. 

6. For the rest of the states, where some abortion restrictions may be enacted but for which an abortion ban is currently not politically feasible, move for the most aggressive restrictions possible at this time. Politicians should look for “horse trading” deals—if we can get Democrats to acquiesce on stronger abortion restrictions by also providing more money and resources for mothers and newborns, do it. That is government money well spent. The goal in these states is to move the needle in the direction of life and to use the teaching function of law paired with increased maternal and infant support to lead people to a greater appreciation of human dignity. 

7. At the federal level, we cannot waver in support of pro-life politicians, particularly the senators who confirm judges. We succeeded in Dobbs on a five-four margin. There is no room to lose conviction.

8. State abortion restrictions should explicitly rely on the natural law framework that demonstrates abortion’s immorality. This does not need to be religiously framed. That abortion is wrong is knowable to natural reason. Make those reasons known to all, particularly the judges who will have to interpret and apply the laws later.

9. State abortion restrictions are going to be challenged under state constitutional provisions. Each state’s constitution is different, but in general, lawyers should craft strategies that rely on both any constitutional text that supports life and human dignity together with the moral imperative to protect the life of the child. Imagine a state court resolving an abortion case in a manner similar to the West German decision, in which the court would outlaw elective abortion (whether absolutely or beyond a particular gestational age) and limit exceptions to those truly difficult cases.

10. Expect adversity. We have already seen blasphemous protests, vandalism, and the intimidation of the justices. I will be surprised if, by the end of this year, we have not seen at least one major news organization run a story about a woman in a state without an abortion clinic who will have died attempting a self-performed abortion, or who will have died because doctors and nurses allegedly withheld care out of fear of prosecution. Such stories are what galvanized support for the Irish abortion referendum. We cannot control what our opponents will do, but we can be ready to counter those narratives by, for example, demonstrating what resources are available to expectant mothers and defending the morality of the relevant abortion laws in place. It has taken fifty years to overturn Roe. I do not expect our fight to end abortion will get any easier. But we know our cause is just, and with that justice should come a zealous joy that reflects the optimism once shared by the abolitionists of the nineteenth century. They too were in for the long fight for human dignity for all, and the fight is easier with the Lord at our backs.