First a definition. By “Pro-Life Movement,” I mean people who instinctively view abortion as a bad although not necessarily in all circumstances an evil thing. Virtually all such people wanted Roe overruled, and not principally because Roe was a breathtaking clunker as constitutional law. They wanted it overruled because it embraced abortion in a way and to an extent they found all wrong. This distinction between opposing Roe because it supported bad instincts and bad results, and opposing it because it gave a dangerously outsized role to the federal judiciary, turns out to have big practical consequences, which I hope this post will begin to explore.
Because of its bottom line embrace of abortion as a “right,” and therefore something the courts were required to safeguard, Roe was the main target of the Pro-Life Movement for 50 years. It had its victory in June with Dobbs. The nub of Dobbs’ holding was that the Constitution simply says nothing about abortion; that it is therefore not a constitutional “right” warranting judicial protection; and that such protection as it is to have is a matter for the electoral and political processes of the states to determine.
The Pro-Life Movement was understandably elated — but, so it seems to me, almost completely unprepared for the outcropping of its victory.
When you want the political process to determine the regulatory scheme for abortion, then you had best be ready to mix it up in the political process. The outcome of the Kansas referendum, in which the state constitution’s provision protecting abortion rights was upheld by a whopping three-to-two margin, tells me that the Pro-Life Movement wasn’t ready. Or to put it in one sentence: If you want to make your case to the electorate instead of the courts, and have been pleading for half a century for the opportunity to do so, then go to it. The Kansas result shows us that, at the minimum, the Pro-Life Movement has a world of work to do on that score, even though, defined in the way I see it, supra, it commands a healthy majority of the electorate.
Peggy Noonan, with whom I often disagree, was on target in recently making this point. She wrote in “What Pro-Lifers Should Learn from Kansas”:
In Kansas, pro-lifers asked for too much. People…want to absorb, find a way to trust. Dobbs was decided only six weeks ago.
And those six weeks have been confusing and chaotic…Nationally, the pro-life movement was attempting to be tactful as opposed to triumphalist, but it left a void and foolish people filled it.
They filled it all right, but they weren’t just “foolish.” To the contrary, they knew exactly what they were doing, as the Left and the MSM (forgive the redundancy) so often do. That’s why, post-Dobbs, we never heard about partial birth abortion or harvesting body parts, and instead heard only of ten year-old girls who had been raped and, under the cruel new regimen, had to travel to Mars to get an abortion.
No compelling [pro-life] leader has emerged as a new voice. National energies haven’t been scaled down to state activity. Pro-choice forces, galvanized when the Dobbs draft leaked in May, raised money, spent it shrewdly, drew in talent and were pushed by a Democratic Party that thought it finally had a game-changing issue. Pro-lifers didn’t have an overarching strategy. But everything we know about abortion tells us that when you turn it into a question of all or nothing, you’ll likely get nothing. Thoughtful, humane legislation has to be crafted in the states, put forward, argued for.
DING DING DING. It’s not like the Pro-Life Movement has no enemies, or that those enemies will wait for even five minutes before they start to paint the new landscape in the dark, menacing hues they want the public to see. Just as in politics you can’t beat somebody with nobody, in public debate, you can’t beat an onslaught of mendacity with chipper faith that balance will prevail.
What the Left does best, of course, (with occasional, idiotic help from the unhinged on the pro-life side) is put out a caricature of the basics of the pro-life position:
There should be no exceptions for rape, if it even was rape. There should be no exceptions for the life of the mother, that gives dishonest doctors room to make false claims. Maybe we can jail women for getting abortions.
When that’s how the pro-life position gets portrayed — as it has been and will be — we can count ourselves as lucky that the Kansas vote was only three-to-two.
We live in a democracy. The pro-life side rightly asked for a democratic solution to a gnawing national problem. To succeed, they need baseline political skills. You persuade people as to the rightness of your vision. You act and speak in good faith so they trust you. You anticipate mischievous and dishonest representations of where you stand. You highlight them and face them. There has in fact been a lot of misrepresentation of where pro-lifers stand and why, and what their proposals will achieve. You have to clear the air. You can win a lot with candor and good faith. You can impress by being prepared and ready….
You have to be clear in explaining how society will arrange itself if you get the measure you asked for. In this case, the pro-life cause, conservatives and the Republican Party have the chance to speak of, laud and increase state and private help for women bearing children in difficult circumstances. The antiabortion movement will never really succeed unless it is paired in the public mind with compassion for the struggling. The Republican Party had the chance to align itself with women. Has it taken it?
One thing we might do, for example, is expand the circumstances in which an unwanted baby legally can be given to a church or charity no questions asked, and no comeback against the mother. But one way or the other, the Pro-Life Movement needs to show the humanity of its position before it gets turned inside-out by its opposition.
Them’s the breaks. Of course “Roe was a breathtaking clunker as constitutional law,” which alone provided more than sufficient reason to overrule it. Indeed, that, rather than any belief that abortion in and of itself is almost always “bad,” is, by the majority’s account, the rationale for the outcome in Dobbs. In consequence of that reasoning and outcome, abortion policy is now back up for grabs at the state level, where I’m frankly not sure the “Pro-Life Movement” (as Bill defines it) can prepare for what’s next other than by bracing themselves for occasional defeats like that which the Movement suffered in Kansas. I strongly suspect that in most states there isn’t going to be a lot of play in the joints on the issue, meaning the neither side in the abortion debate will have the capacity to either blow it where they should have won it or win it where landscape had already made that unlikely.