For most of my adult life, I have hesitated when asked whether I identify as a member of the “pro-life” movement, despite my unconditional opposition to abortion. For one thing, I am not conscious of taking part in anything that resembles activism, though my wife volunteers as a birth assistant and doula for women who would otherwise receive very poor care.
Another reason for my wariness is that I have little patience for “gotcha” follow-up questions about my views on the death penalty and health care policy. While I happen to oppose capital punishment as it is currently practiced in the United States and support single-payer health care, mandatory paid leave and generous child benefits, I do not think that opposition to abortion — what I consider to be the state-abetted killing of hundreds of thousands of infants each year — requires those views. If this means I am not “pro-life,” so be it.
But the main reason for my ambivalence about the label “pro-life” is my longstanding concern about the cohesion and commitment of the anti-abortion movement. For too long, too many members were more focused on overturning Roe v. Wade than on persuading the American people about the nature of personhood. This equivocation about means and ends, which subsumed a clear moral question into the murk of judicial theory and political strategy, has always given me pause.
In the aftermath of Dobbs v. Jackson Women’s Health Organization, the Supreme Court case that overturned Roe, I am sad to report that my misgivings have been vindicated. The court’s decision may have been a great victory for proponents of states’ rights and a necessary prelude to ending abortion, but the pro-life movement appears less powerful now than it has in years. Certainly, the blithe assumption that the movement included an overwhelming majority of Republican politicians and voters was spectacularly mistaken.
In August, for example, what looked like a solidly conservative electorate in Kansas rejected an amendment to the State Constitution that would not have criminalized abortion but merely allowed the Legislature to consider such a ban. During this year’s midterm election campaigns, conservative Senate candidates such as J.D. Vance in Ohio and Blake Masters in Arizona have suddenly adopted equivocal positions on abortion that harken back to the compromises with which many socially conservative Democratic politicians were comfortable two decades ago.
At the end of last month, Senator Mike Lee, Republican of Utah, expressed his opposition to federal legislation that would ban abortions after 15 weeks. He argued that “the best way to save most babies is to allow states, each state, to protect babies in the way they deem most appropriate for their state.”
How large a share of the right-of-center electorate does this waffling speak for? Whatever the exact proportions, it is certainly larger than the one represented by Tudor Dixon, the Republican candidate for governor in my home state of Michigan, whose forthright opposition to abortion does not include the usual litany of exceptions. Public polling suggests that Ms. Dixon will lose. (Anecdotally, I can say that Republican voters even in rural southwest Michigan tend to regard Ms. Dixon’s views on abortion as inconvenient at best, especially in a year when Gretchen Whitmer, the Democratic incumbent, should be vulnerable on economic and other issues.)
It wasn’t always this way. In the early 1970s, opponents of abortion were often zealous activists like L. Brent Bozell Jr., whose anti-abortion sit-ins, explicitly modeled after those of the civil rights movement, were frequently denounced by the conservative press. After 1973, when Roe was decided, these opponents called for overturning the decision not simply because it was poorly reasoned and insufficiently grounded in the text of the Constitution, but because they regarded abortion as an unthinkable moral atrocity to which no one had a right, constitutional or otherwise. Roe may have been a weak piece of jurisprudence (as even many proponents of legal abortion conceded), but the ultimate goal of those who denounced it was not to rectify the state of the judiciary.
These priorities should not have changed when the judicial philosophy known as originalism emerged as the most likely means of overturning Roe. But at some point during the intervening years, the wires got crossed.
For decades now, originalism and opposition to abortion have been treated as synonymous by proponents and detractors alike. Pro-life organizations have routinely issued statements that are indistinguishable from originalist rhetoric in their denunciations of “judicial activism” and their emphasis on “the role of a Supreme Court justice, which is to interpret the Constitution without prejudice and to apply the law in an unbiased manner.” Justice Antonin Scalia, perhaps the most prominent originalist, appears as a matter of course on lists of pro-life heroes, even though he maintained that democratic majorities could legitimately legalize abortion if they chose to do so.
Whose cause was really being advanced by such an alliance between a moral crusade and a constitutional theory? Originalism has won the day, but the anti-abortion cause has not.
I believe that this state of affairs is a direct consequence of conflating what should have been an argument about principles with a question of tactics. The longer we nodded along with one another about what looks now like an ill-considered strategy — vote for the Red Team so that it can get the White House and a Senate majority, which it will use to confirm judicial nominees who, if the right case emerges, may undo a half-century-old legal precedent — the less attention we paid to whether we were all really trying to accomplish the same thing.
I do not mean this cynically, though it’s true that many Republican politicians have been happy to instrumentalize abortion without having any serious underlying convictions themselves. Rather, I mean to bemoan the consequences of allowing abortion to be talked about at a remove, which has prevented generations of abortion opponents from cultivating the intellectual habits and the moral vocabulary necessary to advance their position directly.
It is one thing to ask a candidate for public office to say that he supports nominees for the judiciary who “interpret the Constitution as written.” It is quite another to ask him to say, with philosophical consistency, that he regards abortion as the unjustified taking of human life, and that even horrifying circumstances of impregnation — rape, for example — do not alter the metaphysical status of those killed.
If Dobbs has shown us anything, it is the limited usefulness of constitutional theory to the pro-life movement. The future of the cause will require sustained engagement with the questions of biology and metaphysics upon which the anti-abortion position has always depended, questions that lie outside politics in the conventional sense of the word. Legal thinking is by nature unsuited for such efforts — and perhaps even corrosive to them.
The anti-abortion movement’s legal gambit reminds us of the danger for any cause of eliding first-order moral questions into second-order questions about tactics. The ends may not always justify the means, but in making these calculations it is helpful if one begins with the recognition that they are not identical.
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