Two years ago I asserted in this space that the pro-life movement was dead. I say "asserted" rather than "argued" because the thing seemed plain. By "dead" I did not intend to offer a value judgment (though implicitly one may have been intended); all I meant was that, like an old appliance that can no longer be serviced by the manufacturer, for which parts are difficult if not impossible to find (but not as difficult as securing a technician who understands how the machine is supposed to operate), it had reached the end of its useful life.
The movement had a precise goal and a universally agreed-upon means of pursuing it. Pro-lifers were supposed to vote for Republican candidates, especially in presidential elections, on the assumption that if they were elected, we would have justices on the Supreme Court committed to what is called "originalism," a bizarre legal theory that pretends the phrase "to keep and bear Arms" in 2020 means exactly what it did in 1789 and things like that. It was not a pro-life theory, but at some point it was decided that originalism was at the very least not incompatible with opposition to abortion and certainly better than what was on offer elsewhere.
We all know what was supposed to happen. Republican president gets in the White House, nominates good justices; eventually we arrive at a majority of five or more such carefully chosen Ivy League lawyers and, in keeping with the supposed tenets of originalism, they strike down Roe v. Wade and Planned Parenthood v. Casey. That was, roughly speaking, what it meant to be "pro-life." The aim was clear, the methods chosen.
On Monday we learned that this strategy was a failure. We can say so for the very simple reason that it failed. The conservative majority was there on the Supreme Court, but it did not produce the long hoped-for result. Instead, Chief Justice John Roberts voted with the four liberals to strike down a statute in Louisiana that dared to require abortion providers to obtain the same hospital admitting privileges as the rest of their supposed colleagues in the profession. He did so despite having sided with three of his fellow justices in favor of upholding a similar statute in 2016. His reasoning? That a book on the Intercollegiate Studies Institute reading list told him he had no choice. If the chief justice of the United States believes that "precedent" enjoins him to reject any challenges to a case narrowly decided four years ago, there can be no doubt how he would rule if asked to revisit one dating back three or more decades.
Robert's decision, and the absurd response of the vice president, who appears to have less contact with reality than even his boss, is already giving rise to questions. Is it time to abandon originalism in favor of a new theory of constitutional law, one that does not leave social conservatives fighting with one hand behind their backs? The court's liberal justices have a substantive understanding of the common good that does not depend upon procedural arguments, or, at times, upon anything but prose poetry. Should there be a successor to the Federalist Society, a network of law professors and institutions that will raise up the next generation of young conservative lawyers? One can be inclined to answer yes to all of these questions while also believing that such an answer entails — a long slow process of rebuilding America's legal establishment from the ground up — something impractical. Have America's unborn got that much time? Did they ever?
Here are other questions that all opponents of abortion should be asking themselves. Why is the pro-life movement a quasi-official adjunct of Conservatism Inc.? Why do people like Abby Johnson, the former Planned Parenthood employee who recently said that it would be "smart" for the police to "be more careful around my brown son than my white son," think they are speaking on behalf of the movement, and why is it that journalists are always allowed to come away with this impression? How have we allowed the horrifying reality that more black babies are aborted than born alive in New York to go unobserved during a national conversation about race, especially given the residual social conservatism of so many African-American voters?
Why are the Supreme Court and a nearly half-century-old ruling that you consider illegitimate the be-all end-all anyway? You know already that at the state level there are decent men and women far more committed to the cause than the national Republican Party. Why not borrow a lesson from sanctuary cities or, if you support it, as one suspects an increasing number of you do, the legalization of marijuana in various states? The Nine say that abortion is legal; let them enforce it, or rather, let the president who claims to be on your side do so, and make his real feelings known one way or the other. Urge your governors and state senators and representatives to ban abortion tomorrow. Empower state police to close down facilities. Will Trump really send in the National Guard? Will the next Democratic president do so, in 2021 or 2025 or whenever the White House again comes under the control of the party whose resolve on cultural questions has not been tested thanks to the high court's willingness to implement its agenda by fiat?
Speaking of the National Guard: What exactly is the point of the March for Life, a glorified field trip that receives no publicity year in and year out regardless of how large the crowds are (the only exception being when cable news networks wish to engage in character assassinations of teenagers). Why not shut down a highway or two instead? Make things inconvenient. Tear down a statue of Margaret Sanger, the eugenicist founder of Planned Parenthood. Scribble "Black Lives Matter" and "NO KKK" on her bust in the National Portrait Gallery.
Finally, what are the arguments in favor of voting for Republican candidates, especially on presidential ballots? The vast majority of the American people hold views that could be best described as conservative on social questions and moderate to progressive when it comes to economic matters. Given how little effect the election of two Republican presidents in as many decades — and the nomination of four justices to the Supreme Court — seems to have had on the former, it seems to me almost impossible to understand why the GOP is more entitled to the support of such voters than the Democrats are. Voting Republican may be force of habit. It may be, pragmatically speaking, the lesser of two evils. But surely any argument that suggests supporting the GOP is a strict matter of conscience must be abandoned.
These are only a few of the questions that all of us who believe that children — all children — are made lovingly in God's image should consider as we look with hope rather than despair upon the ashes of the pro-life movement as it has existed for decades.
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