The American constitutional system is the envy of the world, so much so that “It can easily be argued that America’s most important export has been the Constitution of the United States.”[1] The Constitution’s genius, and its unmatched historical longevity, lies in its design to vest all power over the institutions of government that it created in the nation’s People. Ultimately, Dobbs was correctly decided because it returned an issue of grave political consequence to the People, to deal with according to the institutions available to them in their constitutional system.
Supreme Court justice Brett Kavanaugh adverted to this truth in his concurrence in Dobbs. “[T]his Court will no longer decide the fundamental question of whether abortion must be allowed throughout the United States through 6 weeks, or 12 weeks, or 15 weeks, or 24 weeks, or some other line,” he said. “The Court will no longer decide how to evaluate the interests of the pregnant woman and the interests in protecting fetal life throughout pregnancy. Instead, those difficult moral and policy questions will be decided, as the Constitution dictates, by the people and their elected representatives through the constitutional processes of democratic self-government.”[2] And Kavanaugh enumerated the levers of government in the hands of the People: “[T]he Constitution directs the people to the various processes of democratic self-government contemplated by the Constitution—state legislation, state constitutional amendments, federal legislation, and federal constitutional amendments.”[3]
We have a monumental task, and a profound responsibility, to take up these levers of government, employing each in its appropriate time and in its most effective way, to end the scourge of abortion once and for all. It is sobering to think that America may be poised on the edge of another great precipice, as it was before the Civil War began. Once again, as before, we are forced to thoughtfully consider whether this country conceivably can long endure when half of its states believe their citizens possess a fundamental right to destroy human life in the womb, and the other half call it “murder”.
It begins, first and foremost, with the People’s elected representatives in the fifty states. For decades, Americans United for Life has led in this realm, crafting dozens of pro-life model bills that have formed, in the words of a USA Today research report, “the bulk of”[4] the tidal wave of hundreds of life affirming bills passed in the decade before Dobbs. The Dobbs Court recognized this remarkable political phenomenon – the People insisting on legislating a matter in the face of the Roe Court’s pronouncement that they could not – as a key reason to hold that the nation had never accepted Roe as “settled precedent”.[5]
The Dobbs decision was unprecedented in its consequences for constitutional law. Dobbs not only soundly overturned a precedent that had stood for nearly fifty years as “Exhibit A” for runaway judicial activism, it reaffirmed that original meaning and historical analysis will be the basis of constitutional jurisprudence going forward. It repudiated reliance on “sociological law,” as the Court had in Casey. It foreswore any further involvement in crafting a federal abortion jurisprudence, a move that can only bode much better for future Supreme Court judicial nominations that had become showcases for “the politics of personal destruction.” In light of Dobbs, the Supreme Court vacated and returned to lower courts cases that had struck down Arizona’s abortion prenatal nondiscrimination law,[6] Arkansas’ similar prenatal nondiscrimination law,[7] and Indiana’s parental involvement provision.[8] Another legal challenge, involving Alabama’s parental notice provision, was voluntarily dismissed by the parties in the wake of Dobbs.[9] Dobbs sounded the death knell for abortion litigation in the federal courts. With Roe gone, there is no federal right or governmental interest in providing or promoting abortion. Across the country, abortionists have been voluntarily dismissing their lawsuits brought under federal constitutional theories, and federal courts have been lifting injunctions they had entered against life-affirming laws.[10] Now, thanks to Dobbs, at least a dozen states protect human life from inception, and almost half a dozen more from the presence of a heartbeat (normally 6-8 weeks). All told, according to AUL’s publication, Which States Are Protecting Life Post-Dobbs,[11] approximately thirty states now have enforceable gestational age limits on abortion.
Now that protecting all life has entered the realm of the possible, the People are called upon to do all they can in their state legislatures. Legislation protecting life from the earliest stages must be carefully researched, well-crafted, and specific in its terms, so that laws are enforceable and not subject to legal attacks. Based on its decades-long experience crafting legally sound pro-life legislation, AUL offers the “Ready for Life Act,” which protects infants as soon as a pregnancy is detectable, while also ensuring that mothers will be treated for miscarriages and rare, tragic pregnancy-related circumstances that threaten their lives or physical health.
Ensuring that life-affirming pregnancy resource centers are empowered to do their good work will be a key component of a pro-life culture going forward. AUL’s “Empowering Families to Thrive Act” will provide critical financial support for pregnancy care resources through a generous across-the-board tax credit for individual and corporate supporters, which will energize and increase the popular base of support for these life-giving ministries. Ensuring that the First Amendment rights of pro-life advocates to offer truth and support to mothers considering abortion are protected, especially in pro-life states where local officials have established “buffer zones” around abortion businesses or proclaimed themselves a “sanctuary city” for abortion, is the subject of AUL’s “Free Speech for Life Act”.
Of course, the pro-life movement faces significant challenges—or, as we prefer to call them, “opportunities”, in crafting winning strategies in abortion-minded states. Demonstrating the real facts about the risks of abortion will be paramount; AUL’s “Abortion Reporting Act” is designed to unearth the data that documents emergency department complications from abortion, and especially chemical abortion. Demonstrating the humanness of infants in the womb will become all the more important as well; AUL’s “Prenatal Non-Discrimination Act” protects life on the basis of traits present from conception, and in so doing, reminds all of us that even at early gestations, each infant in the womb is already a unique member of the human species.
Particularly in states that have shown the political will to protect human life, pro-abortion attacks now often take the form of state court lawsuits alleging that a “right to abortion” akin to Roe can be found in various provisions of state constitutions. (See Sidebar, “State Constitutional Rights to Abortion.”) In The Attorney General’s Playbook for a Post-Roe World, Americans United for Life has prepared an overview for state-based litigation in the post-Roe world. Issues addressed include new challenges to third-party standing by abortionists who claim they represent women’s interests, and challenges to abortionists’ standing to bring civil rights cases asserting a constitutional “right” to abortion. Now that the legal heft of Roe has been lifted, many states where courts had found a “right to abortion” under state law on the basis of Roe’s creation of an abortion right, or the false history of abortion now corrected by Dobbs, will have an opportunity to revisit these outdated decisions. While the pro-abortion Center for Reproductive Rights counts 10 states as having court-created “rights to abortion,”[12] two of the states on its list – Florida and Montana – may be poised to overturn prior court decisions finding such a right, and the Center doesn’t even bother to list Mississippi, where the state supreme court’s declaration of a “right to abortion” years ago is now considered a dead letter. Nor does it reference Tennessee, where a state supreme court abortion “right” was overturned by popular referendum in 2014, or Iowa, where a judicially created “right” was reversed by the state supreme court just before Dobbs was issued.
Thankfully, the state courts are also a lever in the hands of the People. In twenty-two states, state judges stand for election by the people, and are directly accountable to them.[13] (In a few states, the electoral system only applies to appellate judges, not lower court judges.) Even in states where judicial appointments are not directly in the hands of the People, judges are appointed by other political officials who are elected by citizens—e.g., by governors or legislative representatives. After Dobbs, it is all the more critical that citizens pay close attention to the judicial appointment processes in their states. For this reason, AUL’s assessment of “Life in the States” includes a summary of the judicial selection systems of each state, and how each system might tend to reinforce a right to life, on one hand, or a right to abortion the other.
Of course, the People will continue to speak through their elected representatives in the federal government as well. In that realm, Congress has enacted a bulwark of life-protecting laws, as we explore below in “Federal Policy Is Pro-Life Policy.” Congressional leaders have promised more action after the November 2022 elections, and AUL and its partners will continue to hold members to their commitments in the 118th Congress.
The Abortion Abolition Amendment
Arguably, the Supreme Court made not one, but two egregious constitutional errors in Roe. The second error, now corrected by Dobbs, was the Court’s conclusion that “the right of privacy extends to abortion.”[14] But the first error, which was the predicate for finding a “right to abortion,” may have been its refusal to read the Fourteenth Amendment’s guarantees of equal protection and due process to extend to preborn persons. Justice Blackmun summed up his cursory and wildly inaccurate review of the history of prenatal criminal and civil law protections with the dismissal, “In short, the unborn have never been recognized in the law as persons in the whole sense.”[15] However demonstrably untrue the assertion was,[16] it went unchallenged by the other Justices.
Whether or not, as a matter of originalism, the framers of the Fourteenth Amendment intended that document to include prenatal persons within its ambit is unlikely to lead to productive dialogue. Congress and the States intended the Reconstruction Amendments (the 13th, 14th and 15th Amendments) to ensure the rights of citizens for the Black Freedmen.[17] Over the ensuing one hundred and fifty years, however, the Fourteenth Amendment has been interpreted to guarantee due process and equal protection across the board to whole classes of human persons, including immigrants,[18] women,[19] Native Americans,[20] nonresident aliens,[21] and illegitimate children.[22] And each time the Court in later years considered whether immigrants, or women, or aliens, or illegitimate persons, were “persons” in the constitutional sense, the extension of the Fourteenth Amendment’s protections was based on their mere status as human beings within the juridical reach of the Constitution.
Fourteenth Amendment protection for human beings subject to U.S. legal jurisdiction became something of an ipse dixit, a foregone conclusion once the question was even considered. Five years before Roe, the Supreme Court engaged that ipse dixit to hold that Louisiana could not exclude illegitimate persons from its inheritance laws. “We start from the premise that illegitimate children are not ‘nonpersons’,” Justice William O. Douglas wrote for the Court. Struggling to articulate a reason for this supposition, Douglas resorted to cribbing Biblical language: “They are humans, live, and have their being. They are clearly ‘persons’ within the meaning of the Equal Protection Clause of the Fourteenth Amendment.”[23]
Then, shortly thereafter, in Roe, the ipse dixit was forgotten, and the Court spilt pages on the question of whether human beings in the womb were “persons”, concluding they were not. Thus, equal protection and due process are recognized in some way for all members of the human race within the borders of the U.S.—except its youngest members. Why, when the only articulation of the meaning of “personhood” the Court had ever essayed involved merely being “human”, “living”, and “having their being,” did persons before birth fail that test? Why would the most basic and fundamental of all rights be withheld from those in the womb? When we, as a Pro-Life Movement, understand that the only criterion for inclusion within the Constitution’s protection for “persons” is that they be a living member of the species homo sapiens, we are impelled to either impress upon the Justices of the Supreme Court that self-evident truth, or amend the Constitution to expressly hold so.
The Battle Plan for Life
Each of these strategies—state policy, federal policy, constitutional advocacy and constitutional amendment—is consistent with our federal constitutional system. Each one is a constitutionally appropriate means by which the People of the fifty States express their political commitment to protecting human life. The American Life Initiative is thus a comprehensive approach to protecting every human life—a “Battle Plan for Life,” if you will—as we work to build a nation no longer divided over the value of every person, but one in which all are “welcomed throughout life and protected in law.” We hope you’ll join us as we take up this incredibly important work with the tools of policy and court petition the Supreme Court has returned to the People.
Footnotes
[1] “Influence of the American Constitution Abroad,” https://www.encyclopedia.com/politics/encyclopedias-almanacs-transcripts-and-maps/influence-american-constitution-abroad.
[2] Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2309 (2022).
[3] Dobbs, 142 S. Ct. at 2306.
[4] See Public Integrity, For Anti-Abortion Activists, the Success of Heartbeat Bills Was Ten Years in the Making,https://publicintegrity.org/politics/state-politics/copy-paste-legislate/for-anti-abortion-activists-success-of-heartbeat-bills-was-10-years-in-the-making/(“The USA TODAY/Arizona Republic analysis found Americans United for Life was behind the bulk of the more than 400 [pro-life] bills introduced in 41 states. The analysis compares known model legislation with bills introduced by lawmakers using a computer algorithm developed to detect similarities in language.”).
[5] Dobbs, 142 S. Ct. at 2242 (“Americans continue to hold passionate and widely divergent views on abortion, and state legislatures have acted accordingly. Some have recently enacted laws allowing abortion, with few restrictions, at all stages of pregnancy…. And in this case, 26 states have expressly asked this court to overrule Roe and Casey and allow the States to regulate or prohibit pre-viability abortions.”); id. at 2308 (Kavanaugh, J., concurring) (“Casey’s well-intentioned effort did not resolve the abortion debate. The national division has not ended. In recent years, a significant number of States have enacted abortion restrictions that directly conflict with Roe. Those laws cannot be dismissed as political stunts or as outlier laws. Those numerous state laws collectively represent the sincere and deeply held views of tens of millions of Americans who continue to fervently believe that allowing abortions up to 24 weeks is far too radical and far too extreme, and does not sufficiently account for what Roe itself recognized as the State’s ‘important and legitimate interest’ in protecting fetal life. In this case, moreover, a majority of the States—26 in all—ask the Court to overrule Roe and return the abortion issue to the States.”) (citations omitted).
[6] Isaacson v. Brnovich, Sup. Ct. No. 21A222 (21-1609), 597 U.S. __ (Jun. 30, 2022).
[7] Rutledge v. Little Rock Family Planning Services, Sup. Ct. No. 20-1434, 597 U.S. __ (Jun. 30, 2022).
[8] Box v. Planned Parenthood of Indiana & Kentucky, Sup. Ct. No. 20-1375, 597 U.S. __ (Jun. 30, 2022).
[9] Reproductive Health Services v. Bailey (11th Cir. No. 17-13561) (order granting motion for voluntary dismissal, Jul. 21, 2022).
[10] See generally Carolyn McDonnell, “AUL Life Litigation Report: Post-Dobbs Addendum,” https://aul.org/2022/07/20/life-litigation-post-dobbs-addendum/
[11] See https://aul.org/2022/10/04/which-states-are-defending-life-post-dobbs/; Sara Nolan, “Americans United for Life State Fact Sheet,” https://aul.org/wp-content/uploads/2022/10/State-Facts-Sheet-Long-Version.pdf.
[12] Center for Reproductive Rights, “State Constitutions and Abortion Rights,” https://reproductiverights.org/state-constitutions-abortion-rights/.
[13] Federalist Society, “State Court Guide,” available at https://www.statecourtsguide.com/wp-content/uploads/2018/05/State-Judicial-Selection-National-Map.pdf.
[14] 410 U.S. 113, 153 (1973).
[15] 410 U.S. at 162.
[16] Justice Blackmun elided centuries of protection in English common law and American common and and statutory law for preborn persons, property rights vested in “lives in being,” and a growing move in the states to protect preborn persons through the criminal law of homicide and assault and through the civil tort law.
[17] The Slaughter-House Cases, 83 U.S. 36, 37 (1872) (“An examination of the history of the causes which led to the adoption of [the 13th, 14th and 15th] amendments and of the amendments themselves, demonstrates that the main purpose of all the three last amendments was the freedom of the African race, the security and perpetuation of that freedom, and their protection from the oppressions of the white men who had formerly held them in slavery.”).
[18] The Slaughter-House Cases, 83 U.S. at 37 (“While the thirteenth article of amendment was intended primarily to abolish African slavery, it equally forbids Mexican peonage or the Chinese coolie trade, when they amount to slavery or involuntary servitude….”).
[19] See, e.g., Frontiero v. Richardson, 411 U.S. 677 (1973); United States v. VMI, 518 U.S. 515 (1996).
[20] With regard to Native Americans, the exclusion of “Indians not taxed” from apportionment has been mooted by changes in the status of American Indians since ratification of the Fourteenth Amendment. There is an active debate among the Justices whether Native Americans within the jurisdiction of the Bureau of Indian Affairs are subject to tribal law only, or to tribal law and the U.S. Constitution – but no debate that off the reservation, they are 14th Amendment “persons”.
[21] INS v. Lopez-Mendoza, 468 U.S. 1032 (1984).
[22] Levy v. Louisiana, 391 U.S. 68 (1968).
[23] Levy, supra, at 70-71. Cf. Holy Bible, Acts 17:28 (KJV) (“For in him we live, and move, and have our being….”).
