By Kelley Keller APR 11, 2024
No current topic is hotter, more divisive, and perhaps more determinative of modern election outcomes than abortion, but few understand more than bits and pieces of the issue. The broader contexts for the abortion debate have eluded the American public for decades, leaving most people with inadequate resources for engaging in it competently or confidently. Because their knowledge is fragmented, they can’t assemble the interlocking pieces to create the bigger picture but must rely on the guidance of “experts” to show them the path to progress, wherever that may lead. But many of these “experts” are similarly ill-equipped for the task.
Some Background
Dobbs v. Jackson,[1] the June 2022 Supreme Court decision overturning Roe v. Wade,[2] marked an inflection point for the pro-life movement. How the movement responds to this moment, some fifty years in the making, will determine its future. In no uncertain terms, the Dobbs Court declaredthat if Americans wanted legal abortion, they could vote for it. If they didn’t, they could vote against it. It was now for the people to decide, not judges.
And the people are deciding.
Frustrating many pro-lifers, the people keep deciding against life, not for it, creating a rattling reality for the pro-life movement. The range of reasons people are voting for abortion rights is long and wide, and it would take a book-length treatment to do them justice, but I believe some standouts can kickstart a long overdue “family meeting” about why pro-life keeps taking a pounding at the polls. Here’s a quick take on five of them.
Reason 1: Tormented by Tunnel Vision
Abortion doesn’t exist in a vacuum. It’s part and parcel of a complex ecosystem full of clashing interests and values about sex and the body, all competing for pride of place in a changing world. Without knowing the specific role abortion plays in the system, one cannot possibly comprehend the full spectrum of the issue. Absent a gestalt view, engaging competently in what has sadly become a contest of morals, wills, and values is impossible. Regrettably, the work of creating and maintaining such a view has never surfaced as a priority in pro-life activism, an unfortunate oversight and Achilles heel of the movement.
By opening the aperture, we see that Roe (1973) came right on the heels of the cultural upheaval of the 1960s, the Civil Rights movement, the end of Vietnam, the onset of the sexual revolution and second-wave feminism, advancements in medical technology and the pill, the E.R.A., rampant communist revolutions in the East and Marxist infiltration in the academy, mandatory comprehensive sex education in public schools, the birth of the welfare state, and a dramatic regime change in the nature and substance of rights jurisprudence in American Constitutional law. It was, and remains, a primordial mess—but one that dramatically favors the pro-abortion movement.
But for the times to “keep-a-changin’,” women needed to have sex on the same terms as men: zero risk of an unwanted pregnancy to derail them from pursuing personal freedom and economic independence. Easy, free, and on-demand access to contraception and abortion were the prescribed solutions to biology’s disinterest in women’s politics. Abortion has never been the cause of our chaos; it’s just one of many nasty symptoms of other disturbing influences. Curiously, this cause/effect distinction is not a highlighted feature of the pro-life platform, arguably to its detriment.
Consider the following.
The pro-life movement has focused primarily on abortion as a disease in need of a cure rather than the symptom of a different problem. Indeed, it ultimately became so preoccupied with fighting narrow legal and regulatory battles that it completely missed, or otherwise ignored, the emerging war involving abortifacients.[3] In 1975, pro-life giant Dr. Joseph R. Stanton warned the movement that the pro-aborts had a new trick up their sleeve that, once deployed, would take the industry by storm: abortion by medication, not surgery. This planned invasion was years in the making and included a range of complex political and litigation strategies conveniently aided by some new medical dictionaries. Ten years prior, in 1965, the American College of Obstetricians and Gynecologists (ACOG) redefined conception from occurring upon fertilization to not occurring until implantation.[4] If pregnancy didn’t begin until the fertilized egg implants in the uterus, then any medication preventing implantation could be classified as a contraceptive instead of an abortifacient. It’s a much easier sell. Abortifacients are now commonplace and account for the majority of abortions today. Suffice it to say, this was an unforced error by the movement and a missed opportunity for the unborn.
Reason 2: A Confused Mind Doesn’t Buy
As the marketing adage goes, a confused mind doesn’t buy. If a brand gives consumers a simple, yes-able proposition for their product, they’ll purchase and likely return for another, generating brand loyalty. If a brand presents consumers with too many choices or decisions, they’ll cut bait and pursue another offer. It’s no different with the pro-life and pro-abortion “brands.”
The pro-abortion crowd understands this concept, while pro-life messengers have been on the struggle bus. “My Body, My Choice” has been the battle cry for bodily autonomy and abortion-on-demand since the late 1960s. For them, there are no exceptions, no caveats, no compromises. The pro-life movement has never met this “messaging moment” with similar simplicity or conviction. They have no catchy slogan or bright line position, just a laundry list of caveats and exceptions presenting too many choices and decisions. As a result, pro-life has never offered a comprehensive, straightforward, yes-able proposition to its supporters. And it’s tough to rally the troops without a rallying call.
Reason 3: Speaking with a Forked Tongue
Abortion is a binary proposition. One is aborted or unaborted; a baby is never “a little” aborted. Human life begins at fertilization, or it doesn’t. Abortion is the intentional killing of an innocent human being, or it isn’t. Abortion is a crime, or it isn’t. There is no middle path, no third way; there are no exceptions. One is pro-life or pro-death. There is no such thing as pro-choice; it’s just a euphemism with some marketing gloss, albeit a powerful one.
In his classic work No Exception: A Pro-Life Imperative, Charles E. Rice articulates the pro-life mission succinctly and unapologetically: “To gain its objectives, the pro-life movement must demand that the law fulfill, without exception, its duty to protect innocent life …[U]nfortunately, that movement has endorsed in practice the pro-death principle that the law can validly tolerate the intentional killing of innocent life.”[5]
He is 100% correct.
For decades, the pro-life movement has waffled on when to hold the law accountable to protect innocent life, and when to give it a pass. While the movement consistently demands the law protect the unborn from elective abortions, it curiously releases it from its responsibility if a child is conceived during the commission of a crime (rape), is likely to have genetic anomalies (incest), or when an abortion is “required” to save the life or “health” of the mother (therapeutic abortion). This is garden-variety hypocrisy.
These compromises have consistently betrayed the movement’s undergirding principle that moral absolutes apply absolutely, and the sanctity of life is chief among them. The reality that human life begins at fertilization is not just the sine qua non of the pro-life position; it’s the instruction manual for the law outlining the duties it must fulfill and those it must reject. Every time the pro-life movement contradicts its own premises and makes the intentional killing of some human life politically negotiable, it loses a bit more of its legitimacy.
Reason 4: Dogged by the Denial of Fetal Personhood
The 14th Amendment (14A) was ratified in 1868. Its purpose was to guarantee freedom, due process of law, and equal protection of the laws to all Americans, not just some, particularly ex-slaves in the wake of the Civil War. Because the Bill of Rights restrictions on infringing individual liberties apply only to the federal government, significant rights violations remained at the state and local levels. Case in point: Dred Scott v. Sandford (1857).[6] Justice Taney, writing for the majority, held that free descendants of slaves weren’t legal persons and, therefore, didn’t qualify for citizenship or the protection of law. Like their forebears, they were labeled as property.
Perhaps of minimal comfort at the time, Justice McLean’s searing dissent would prove prescient. McLean wrote that the majority might deem the black man merely chattel, but “he bears the impress of his Maker, and is amenable to the laws of God and man; and he is destined to an endless existence.” The black man is more than a disposable body, he is also an imperishable soul with irreducible human dignity.[7]
McLean was not a lone thinker. Indeed, the impetus behind 14A was overturning Dred Scott and ensuring nothing similar could ever happen again. It did so by (1) restricting state and local governments from infringing individual liberties in the same manner the Bill of Rights restricted the federal government, and (2) clarifying the legal personhood status for every human, particularly ex-slaves and freeborn blacks. For the first time in American history, no member of the human family was excluded from the law’s protection because they weren’t persons.
Familiarity with 14A helps one understand abortion because its due process clause (DPC) is the source of the Court’s justification for a Constitutional right to abortion. Modeled after 5A, the clause reads: “… nor shall any State deprive any person of life, liberty, or property, without due process of law.” The plain language establishes that a certain amount of judicial process is required before the government can justifiably deprive a person of their liberty. It’s the proverbial shield against snatching someone from their home and taking them to the gallows without notice of the charges or a fair trial. The 14A closed an enormous gap in American jurisprudence, but the victory was short-lived.
A century later, the Supreme Court went rogue in Roe v. Wade. In search of a Constitutional right to abortion, the majority redefined “person”in the DPC by circumscribing the humans included in the definition and those who missed the mark. Everyone but the unborn made the cut, a conclusion that the Court has never challenged, including in Dobbs. To arrive at its decision, the Roe Court had to break the natural and legally recognized link between humanity and legal personhood and designate itself as the sole arbiter of the human status of the preborn. It was a grotesque arrogation of power.
But that wasn’t Roe’s only grenade. The court also gave the term “liberty” a dramatic makeover. First, it affirmed an earlier holding finding a “right to privacy” inherent within the meaning of “liberty” in the DPC. Then, it determined that the new right to have an abortion is enveloped in this “right to privacy.” Whether Roe erred in finding the right to abortion is part of the “right to privacy” is the sole focus of Dobbs.
On January 22, 1973, the U.S. Supreme Court, no longer constrained by the natural law, deprived an entire class of humans of their right to life and gave another class the right to exterminate—at will—the newly disenfranchised, and all with the stroke of the pen. Make no mistake, Roe wasn’t just a joust about the meaning of terms; it was a resounding endorsement of abortion as a moral good.
