On June 24, 2022, the U.S. Supreme Court released its decision in Dobbs v. Jackson, overturning Roe v. Wade (and Casey v. Planned Parenthood) in which the court had found a constitutional right to abortion through “emanations and penumbras” of the 14th Amendment. The elation in the pro-life community was palpable. But the mood changed abruptly with the results of November’s midterm elections. A pall was cast over the post-Roe joy, and there are many questions about what the pro-life community should do next.
Dobbs created an opportunity
When Dobbs was announced, I was less sanguine than many pro-lifers. I always recognized that a lot more work was going to be required. The goal has always been to protect the lives of unborn babies while also caring for their mothers. The Dobbs decision alone did not and cannot achieve these worthy ends. What it did do was knock down a monumental barrier and open up opportunities for pro-life action. For the first time in almost half a century, the legal battle to directly restrict abortions will now be fought in legislatures and on ballot initiatives across the country, where a wide variety of laws will be up for consideration.
Immediately after Dobbs, an angry and seemingly united pro-choice opposition mobilized. Democrats in Congress again tried—and failed—to pass an extreme national abortion bill in Congress. During the general election campaign, Democrats spent $391 million on abortion-focused TV ads. In states as different as Montana and Michigan, Kentucky and Vermont, pro-choice forces won ballot initiatives. Though Republicans narrowly captured the majority in the House, Democrats kept control of the Senate and held back the predicted red wave.
When Dobbs was announced, I was less sanguine than many pro-lifers. I always recognized that a lot more work was going to be required.
The pro-life movement seemed to be caught unprepared and unable to respond. While Roe and Casey remained operative, it was easy to agree on the need for action by the Supreme Court. Since Dobbs, it has not been possible to find consensus—not just on an approach but on what the near-term and long-term goals should be. A healthy discussion on the way forward is now underway in public and private venues.
Having spent 16 years in Congress in the middle of the national abortion politics maelstrom as a pro-life Democrat, I know this terrain better than most and from a unique partisan perspective. As I have always emphasized, the most important task is to win hearts and minds. Since abortion regulations will be decided in democratic processes across the country, the pro-life movement also needs to be politically mobilized. But to what ends?
[Related: Confessions of a pro-life Catholic Democrat in a divided nation]
Looking at the current landscape and recent experiences, the focus should be on both promoting achievable near-term abortion restrictions and supporting new government policies to help pregnant women and families with children. The latter will encourage women to choose life and provide much-needed economic aid to women, their babies and their families. It will also help demonstrate to the American public that the pro-life movement is not about punishment but about compassion and the fostering of human flourishing.
Despite what some pro-life activists are advising now, it would be a mistake to abandon efforts that have been undertaken for the past five decades in Washington. While most activism post-Roe will take place at the state level, to have the greatest impact it is imperative that the pro-life movement comes together on federal legislation that embraces this two-pronged approach.
Federal abortion regulations
There is already consensus on one piece of federal abortion legislation that needs to be stopped. The misleadingly titled Women’s Health Protection Act passed the House twice but failed in the Senate twice in the current Congress. While this bill is portrayed by supporters as a modest guarantee that abortion will not be completely outlawed, it would instill into federal law abortion-on-demand through an entire pregnancy and prevent any state regulation. This extreme policy is opposed by a sizable majority of Americans—a supermajority, in fact. This bill will continue to be a priority in Congress for pro-choice activists.
It is also important not to forget legislation that has been proposed in Congress for years without any constitutional objections but has never been enacted. This includes a bill that prohibits federal taxpayer funding of abortion and one that guarantees conscience protections for health care providers.
While most activism post-Roe will take place at the state level, to have the greatest impact it is imperative that the pro-life movement comes together on federal legislation that embraces this two-pronged approach.
Beyond this, there is not a consensus on any other federal legislation regulating abortion. After much internal debate and disagreement among pro-life advocates, in September, Senator Lindsey Graham of South Carolina and Rep. Chris Smith of New Jersey were joined by a number of organizations in announcing the introduction of legislation that would restrict abortion on the federal level at 15 weeks of pregnancy. This bill includes exceptions for rape, incest and the life of the mother and makes clear that women will not be prosecuted for having an abortion. It also does not pre-empt any additional state regulation of abortion.
Given the current political landscape, this bill is the most politically sensible piece of federal legislation for the pro-life community to embrace to advance the direct protection of the unborn. It will not become law in the next two years but has the potential to be within political reach in the not-too-distant future. However, there were immediate objections raised to this bill by pro-life politicians and activists. Some argued that abortion regulations should be left to state governments. Others said they would only support a bill with restrictions earlier in pregnancy since only a small percentage of abortions take place after 15 weeks.
While many on the political right have cited federalism as a reason to oppose lawmaking by Congress on many issues, pro-life politicians and organizations have consistently supported federal abortion regulations. There is no reason for this to end now. Advocating for legislation that will save some lives and that has the potential to pass in the foreseeable future is the prudent choice. There is a good case to be made that this proposal—and not one any more restrictive—has the potential to become law in the not-to-distant future.
While many on the political right have cited federalism as a reason to oppose lawmaking by Congress on many issues, pro-life politicians and organizations have consistently supported federal abortion regulations.
When I was in Congress, I stated that I understood that life begins at conception and should be protected in law, and that exceptions (besides to save the life of the mother) were inconsistent with this understanding. But I never voted for a bill or amendment that prohibited abortion before 20 weeks or that did not allow for exceptions for rape, incest and the life of the mother because it is important to be focused on trying to pass what is possible rather than just making a statement.
Passing the 15-week bill could also help to reset the national discourse on abortion. Not long ago, it was not politically acceptable to claim that abortion is equivalent to any other health care procedure because there was a clear consensus that it is not—thus the “rare” in Bill Clinton’s call in 1992 for abortion to be “safe, legal and rare.” This phrase remained in Democratic Party platforms until 2008. In recent years, however, pro-choice advocates have been promoting the “abortion is health care” narrative with some success. A restriction at 15 weeks would be a reminder in federal law that abortion is a serious moral matter.
To many observers, the real motivation behind the “leave it to the states” approach was an attempt to avoid the issue, especially as the midterm elections approached. After all, many Republican politicians who came out this summer in support of “leaving it to the states” had supported an almost identical bill that restricted abortion at 20 weeks in 2018. It was a political mistake to believe that candidates could eliminate the abortion issue from a campaign by declaring themselves pro-life but saying that abortion is a state issue. Pro-choice candidates repeatedly ran ads against their opponents saying that being pro-life means supporting a national ban on every abortion with no exceptions.
A restriction at 15 weeks would be a reminder in federal law that abortion is a serious moral matter.
A few pro-life Republican candidates, such as Senator Marco Rubio of Florida, instead went on the offensive in their campaigns by embracing the 15-week bill and attacking their opponents’ extreme pro-choice stance. In any jurisdiction in which a pro-life candidate has a chance to win, a majority of voters are likely to support this legislation.
Beyond abortion regulations
The pro-life movement has never only advocated for legal restrictions on abortion. Recognizing the conditions that often lead women to seek abortions, many in the movement have endeavored to help pregnant women in other ways. There are more than 3,000 pregnancy support centers across the country that provide health care services as well as financial and personal support for pregnant women and their babies throughout pregnancy and after birth. The pro-life community has been very generous in supporting these facilities through personal sacrifice, financial donations and volunteer work. With the recent attacks on these centers, rhetorically by politicians and literally by vandals, this support is likely to increase.
There has not been the same level of support for government policies to aid pregnant women. As pro-life and pro-choice politicians and, to a somewhat lesser degree, voters sorted themselves over the past 40 years into the Republican and Democratic parties respectively, the pro-life position became increasingly intertwined with support for limited government. This meant that the remaining pro-life Democrats were the only ones left promoting legislation to provide aid to pregnant women and their babies. With the political demise of these Democrats, such proposals largely disappeared. In fact, some such initiatives that were included in the Affordable Care Act and funded for 10 years are about to cease because they lack a champion in Congress. This includes grants to states to assist pregnant and parenting teens, college students, and victims of domestic violence, sexual assault and stalking. Pro-choice Democrats are afraid to support anything that suggests that abortion is anything but good for women.
But there are Republicans and others on the political right who are beginning to recognize that the government has an interest in helping pregnant women and families with children. For example, Senator Rubio introduced the Providing for Life Act, which contains provisions such as paid parental leave, an expansion of the child tax credit, additional funding and reforms of the Nutrition Program for Women, Infants, and Children, and support for pregnancy centers.
Without a new plan to rally around, the pro-life movement will fail in its mission.
In the House, Representative Jeff Fortenberry of Nebraska introduced the Care for Her Act, which would provide a $3,600 tax credit to pregnant women and incentives for states to join a new federal-state entity called the Pregnancy Support Collaborative. In some think tanks and conservative publications there is a newfound willingness to consider these types of government policies. For example, the Ethics and Public Policy Center recently issued a statement of principles for a pro-family agenda that embraces the importance of economic policy.
While many of us would support legislation that incorporates even more government support, these proposals could represent a major turning point for the pro-life movement. While the debate is likely going to be contentious, there are several reasons to embrace such proposals. First, it is compassionate to shape government policies in ways that help those who are in need, especially those who are most vulnerable. Yes, indiscriminate spending and ill-targeted tax cuts are not necessarily going to be helpful and can be wasteful. But this should not be an excuse for failing to study and implement policies that help pregnant women, children and families, whether these policies rely on changes to the tax code, aid to private sector organizations or government programs.
Second, such a shift could help shape the public’s understanding of what motivates the pro-life community, which could help open up more people to embracing the humanity of the unborn. It could be especially valuable in attracting young people. Often when I have spoken on college campuses, I have been approached by students who are pro-life and who see an important role for government to play in helping people. Diminishing the anti-government sentiment often connected to the pro-life position could encourage more to become actively involved in the movement.
The pro-life community has been whipsawed by events this year. The Dobbs decision created new opportunities to protect life, but election outcomes made clear the reality of the difficulties going forward. Without a new plan to rally around, the pro-life movement will fail in its mission. The two-part plan laid out here presents the best chance for success, but it is going to require a reconsideration of prior thinking for some. But the moment is here, and the time to come together is now.
