The Bedrock of a Post-Roe Pro-Life Agenda
Editor's note: The following piece originally appeared at National Review.
Yesterday, Roe v. Wade was rightly consigned to the dustbin of history. In an impressive and thorough opinion, Justice Samuel Alito dispatched Roe’s flimsy legal rationale, finding that “the Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision. . . . Abortion is not a fundamental constitutional right because such a right has no basis in the Constitution’s text or in our nation’s history.” For the first time in nearly half a century, the question of abortion is once again subject to the political process, with elected representatives of the people, not judges, taking center stage.
In the short term, the conversation around abortion is likely to become even more contentious as it shifts from the quiet of the courtroom into the boisterous arena of politics. Much of this conversation will occur in state capitols, where states will diverge in their legal treatment of the issue: Some will protect unborn babies in ways Roe made impossible, while others will sadly rush to maximize the number of unborn lives ended through abortions performed within their borders. As this process plays out, citizens and lawmakers who wish to foster a culture of life should keep three pole-star principles in mind.
First, the pro-life agenda must center on uplifting and supporting women alongside saving unborn lives. Public policy should recognize that abortion is and always has been a bad solution to real problems that people face. Demand for abortion is driven by social maladies that cannot be cured through a court decision. Most abortions are obtained by unmarried women who already have one or more children. And most women who obtain abortions would choose a different option if they believed it was truly available. Broken homes, poverty, and a perceived lack of access to resources drive most decisions to have an abortion.
Thankfully, a large and growing infrastructure already exists to care for women facing unplanned pregnancies. Today, more than 2,700 pregnancy-resource centers located throughout the nation provide critical services to women in need, including counseling, training, housing assistance, and supplies such as diapers and formula. States such as Arizona and Missouri have found creative ways to bolster this vital infrastructure by making donations to pregnancy-resource centers eligible for tax credits.
Similarly, foster care and adoption agencies — many of them faith-based — offer meaningful options to women who are unable to care for their children. And several states have made it possible to access these services safely and confidentially by passing safe-haven laws, enabling women to surrender their newborn children without fear of prosecution.
In short, any successful pro-life agenda for a post-Roe era must begin with comprehensive investment in and support for these crucial community resources that will empower women to flourish as they choose life.
Second, liability for violating pro-life laws should be directed first and foremost against the commercial actors in the abortion-industrial complex. It stands to reason that those who profit from death and human suffering should be subject both to criminal penalties and to civil liability. This includes institutions such as Planned Parenthood that provide abortions, those practitioners who perform abortion by surgical or pharmaceutical means, and pharmaceutical manufacturers, distributors, and dispensers that create and distribute abortion-inducing drugs such as mifepristone and misoprostol.
These same civil and criminal tools, however, should not be used to punish women who seek or even procure illegal abortions. The abortion industry regularly preys on women in desperate circumstances and misleads them into believing that killing their unborn children will alleviate their pain. Because many of these women are victimized by “Big Abortion,” they should not be subject to sanction by the government.
Third, new and existing abortion laws should be vigorously and faithfully enforced by the appropriate public officials. Many “progressive” county and city prosecutors across the country already have vowed not to enforce existing abortion laws. States could address such lawless behavior in part by handing concurrent enforcement discretion to state attorneys general. In addition, state licensing bodies could pull the licenses of any licensed health-care workers or pharmacists who defy state law. Finally, existing state tort and consumer-protection laws could provide avenues for private individuals to hold participants in the abortion industry accountable for harmful or misleading conduct.
A culture of life is one in which mothers, babies, and families flourish. Building that culture requires a comprehensive strategy that marries support for those institutions that uplift women, children, and their families with concerted efforts to outlaw those institutions that traffic in death. And it requires public servants who will faithfully enforce the law. These broad principles provide a sturdy foundation for crafting public policy as the pro-life movement, at long last, enters the post-Roe era.
