The only real path to a pro-life victory

For those who have fasted and prayed, in some cases since before 1973, in the hope that one day the evil of abortion will disappear from this country, the new laws in Georgia, Alabama, and Missouri will inspire feelings of jubilation. We should be grateful both for this legislation and for the restrictions long in place in states such as Kentucky, where abortion is more or less de facto illegal already, which have saved so many lives (an outsized number of them African-American).

But there are two realities that must be faced immediately. The first is that the battle for the unborn has only begun. One thing we agree with our opponents about is that the issue cannot simply be left up to the individual states, which is what would happen if Roe v. Wade were narrowly overturned by the Supreme Court on conventional originalist grounds. Babies in New York and California and Hawaii need saving too.

Which brings me to the second unfortunate reality, namely, that we have no idea how to save them. The most common remedy proposed to this problem is a constitutional amendment. (Some, such as Dr. William Marshner of Christendom College, have even suggested two such amendments, the first explicitly allowing the federal government to make abortion-related laws, the second defining human life as beginning at the moment of conception.) The problem with this line of argument is simply that such an amendment has little chance of being ratified. The Constitution has been amended 27 times in the course of our history, each time following a two-thirds majority vote in the House of Representatives and the Senate and ratification by three quarters of the states. A truly remarkable election result for the GOP makes such a majority just about imaginable in the Senate; it is much harder to imagine how it could be secured in the House, much less in both at once.

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There is, of course, another hypothetical means of amending the Constitution — the Article V power of convening constitutional conventions. On first glance this seems like a much more plausible approach than attempting to get something passed in both the House and the Senate. Republicans already control a majority of state legislatures — many of which are also home to that federally endangered, if not quite extinct, species, the pro-life Democrat. There at least they would have the upper hand. But we have never seen an Article V convention before, and there is no reason to think that such proceedings would not not be hijacked by balanced budget fanatics, campaign finance reformers, and kooks of all sorts. This might even happen by design. And the opportunity for horse-trading — a national "right-to-work" amendment in exchange for backing down on abortion, for instance — would be very tempting for some business-class Republicans. The convention is a blind alley.

So far as I can tell the single best means of outlawing abortion nationwide would be a ruling — perhaps one that comes after President Trump appoints someone like Amy Barrett to the Supreme Court — that overturns Roe broadly on the grounds that abortion is a violation of the Fourteenth Amendment. This not only avoids the endless procedural wrangling associated with constitutional conventions; it would put behind the decision the full machinery of the executive branch with its vast powers of enforcement. It would also be symbolically fitting in the double sense that it would reverse the tendentious reasoning of Roe itself while calling to mind the original crimes against human life and dignity that inspired that amendment’s ratification at the barrel of a gun at the end of the darkest hour in this republic's first century.

Moreover, using the courts and the presidency alone has the added benefit of appeasing the cynics. It has been clear for ages that a sizable portion of Republicans do not wish to see Roe v. Wade overturned because they recognize that millions of people support the party mostly, indeed in many cases solely, because it opposes abortion. A ban that is only ever four years from disappearing would be the greatest turn-out vehicle the party bigwigs could imagine. Whatever was the matter with Kansas will stay wrong, and the GOP's coalition will survive. This all sounds very sordid and transactional, no doubt, but that is democratic politics for you.