Dobbs: Not the victory you think

Updated: Sep 22



For the anti-abortion wing of the American public, 2022 has been an uplifting year. Like everyone else I was filled with positive excitement this April at the announcement that a draft version of the Supreme Court’s Dobbs vs Jackson decision indicated the Court was about to overturn the infamous Roe vs Wade decision of 1973. Like everyone else I was filled with sardonic pleasure witnessing abortion supporters lose their minds over this threat to their cherished right to kill. Like everyone else I was quite happy this June when the ruling finally came down and our hopes were realized. Roe vs Wade is no more.


Nevertheless in my case the enthusiasm was tempered by an understanding that the end of Roe is only a victory if and only if it curtails abortion in America. And that remains to be seen. The justices may have reached their decision on Dobbs, but the jury is still out on how much good Dobbs will actually accomplish.


You certainly wouldn’t get this impression by listening to the mainstream pro-life movement. Ever since April there has been a non-stop stream of positive messaging coming from most major pro-life organizations, especially those whose main occupation for the past 5 decades has been altering the makeup of our 9-person oligarchy, the US Supreme Court. They know most pro-life Americans are thrilled at what has happened and each is eager to take advantage of that enthusiasm, often for purposes of fund raising. Here is a smattering of messages published by pro-life organizations in emails and newsletters immediately following the release of Dobbs [emphasis mine]:



"The moment we have been working, hoping, and praying for has finally come!"

- Jeannie Mancini, March for Life


"For almost 50 years, pro-life Americans have prayed for and worked towards a Post-Roe America. Now, we are celebrating as Roe v. Wade and Planned Parenthood v. Casey have finally been given a dual-tombstone that reads, "1973 & 1992 -2022!" The abortion policy decision has been handed back to the states, and that means that our battleground is now entirely on the state level. Fortunately, Students for Life Action (SFLAction) and Students for Life of America (SFLA) are already there."

- Tina Whittington, Students for Life


"A great injustice has been corrected, and that gives us new hope for our nation and a reason to rejoice. Half the states will now become abortion free and millions of innocent lives will be spared from the barbaric practice of abortion. This is a human rights victory beyond all others and justifies the decades of tireless work by selfless pro-life individuals and organizations, including Operation Rescue, which have worked and prayed for decades for this day."

- Troy Newman, Operation Rescue


"This is the moment we’ve all prayed and worked for: Roe v. Wade has been overturned."

- Eric Scheidler, Pro-life Action League


"We are experiencing a truly historic victory for life! I rejoice alongside you for the lives that will be saved due to the reversal of this horrific decision. But this victory is just the beginning. Our work to transform our culture and make abortion completely unthinkable is just getting started. Will you make a gift of any amount to Live Action today to persevere with us in the fight?"

- Lila Rose, Live Action


"GREAT DAY FOR AMERICA! INFANT LIVES WILL BE SAVED! GOD HAS GIVEN US THE VICTORY! NO WOMAN WILL HAVE TO PARENT A CHILD SHE DOES NOT WANT! WOMEN WILL NOT SUFFER ABORTION RELATED TRAUMA ANYMORE!"

- Allan E. Parker, Jr, The Justice Foundation


"The US Supreme Court has just struck down Roe v. Wade. The ruling holds drastic ramifications, both immediate and long-term. More than twenty states currently have laws on the books that would effectively ban abortion within their borders upon Roe’s fall. Life is WINNING. Will you donate today to spur LifeSite’s coverage of this momentous decision in the pro-life movement?"

- LifeSiteNews


"It is finally here, the day for which we have prayed and labored for almost 50 years - the end of Roe v. Wade … Let's be clear - this ruling would not have happened without conservative Christians engaging in the political process to see Constitutionalist justices put on the bench. Despite criticism from the media and even the Republican establishment, FRC Action has remained focused on this goal."

- Tony Perkins, Family Research Council



It is true that these organizations (and others) have been quick to caution that the work is far from finished. They are correct: child-killing is yet to be abolished. Nevertheless, their statements carry a false implication, namely that the movement is on the right track and need only stay the course to victory. Barely 5 days after the Dobbs decision was issued over 30 mainstream pro-life leaders appeared in a jointly produced simulcast event entitled Life Beyond Roe, touted as a grand, vision casting presentation of what the pro-life movement would need to do in a post-Roe world.

With few exceptions, their collective plan for ending abortion looked pretty much as it looked 6 months ago: each organization pledged to continue doing the same thing they had always done (albeit with a greater focus on individual states) and asked ordinary pro-lifers to send money. Why abandon a winning strategy, right? Since then, not a few pro-life leaders have repeated ad nauseum the talking point that many states are now “abortion free" and that this is further proof that the labors of America’s pro-life movement are bearing bountiful fruit.


I respectfully but passionately disagree.


It is difficult to explain my objections to the average pro-life person because we want things to be simple and certainly don’t to be told we’ve been wasting our time. But in my opinion what has happened this year is less like a hard-won victory and more like the participation prize given to a marathoner who, having run off course and arrived at the finish line dead last, assumes he has beaten the field. Certainly, some organizations and individuals have been working very hard and doing some good. But I contend that our overall strategy is seriously flawed.


There are three basic problems that anti-abortion advocates, in our eagerness to applaud ourselves, overlook:

  1. First trimester mail-order abortion pills are accessible everywhere

  2. Second and third trimester clinical abortion remains accessible in many states

  3. Nothing has changed about the way pro-lifers view the powers and responsibilities of both our government and ourselves.


If unaddressed, these three problems may yet make our “victory” a hollow one. And the mainstream pro-life movement is not designed to address these problems.



DO IT YOURSELF MURDERS


Everyone now recognizes that it is possible for a woman to abort her child at home using one of many chemical methods. Drugs such as mifepristone can terminate a pregnancy at least until the twelfth week, if not longer. As most abortions take place within this timespan, the sale of abortion drugs alone could almost completely offset any reduction in clinical abortion numbers. There are now many heavily trafficked websites selling abortion pills online. One particular study reports that purchases have skyrocketed.(1)

Currently, it’s impossible for most pro-life states to prevent this form of infanticide. Even if it were proven that a woman had killed her child at home, no legal action could be taken as most current abortion “bans” give aborting mothers legal immunity from prosecution! In other words, an abortionist can be prosecuted, but not a mother. This loophole (possibly the most gaping hole in the Dobbs-as-victory narrative) is the pro-life movement’s own doing. You cannot blame pro-aborts for creating such a conundrum. We did it to ourselves out of temerity and misplaced, over-generalized sympathy for women who abort.



THE PERSISTENCE OF CLINICAL ABORTION IN PRO-ABORTION STATES AND ELSEWHERE


Remember that abortion remains thoroughly unrestricted in at least 23 states, as well as the District of Columbia and certain US territories. These areas are fast becoming abortion havens where the industry is aggressively entrenching itself financially and legally. Please note that about 64% of clinical (i.e. reported) abortions in 2020 took place where the political climate is extremely pro-abortion and unlikely to impose regulations anytime soon. California and New York alone account for 28%. Therefore, the majority of women who aborted locally prior to Dobbs can still abort locally now and will be able to do so into the foreseeable future.


While it is true that women are less likely to abort if they must travel great distances, more than you’d imagine will certainly do so. In his book Aborting America former abortionist Bernard Nathanson described conditions in his Manhattan abortion clinic in 1971 and 1972, when baby killing was tolerated in New York (under certain conditions) but generally outlawed nationwide. Nathanson would often receive customers from as far away as Texas. This was fifty years ago when the average price of an airline ticket was comparatively higher than it is today, and many non-profit organizations now take it upon themselves to supplement interstate abortion journeys. Considering the willingness of some states to fund abortions with public money, it is not hard to imagine a future in which a girl from Wyoming is flown to Los Angeles and back for a late term abortion at the expense of California tax-payers.


Furthermore, just because the Supreme Court believes there is no Federal policy on abortion does not mean we will have no Federal policy. Pro-abortion presidents, for example, have always felt more comfortable pushing their own beliefs upon the states than pro-life presidents, and the frequent use of executive orders is one tool to accomplish this. Already this month President Biden announced that VA hospitals would begin providing abortions in certain cases, even in violation of Federal law. There is an enormous amount of Federal land scattered throughout the United States. It is a stretch to suggest that future pro-abortion administrations may allow private abortion clinics to open shop on Federal land in pro-life states?

A radically pro-abortion Congress could do even more damage than a pro-abortion president. The Dobbs decision merely says there is no Constitutional right to abort, not that the Constitution prohibits abortion (even though, as I’ll explain below, it does). So if Congress passes new laws explicitly granting abortion rights nationwide, the Supreme Court would probably uphold them. While this scenario is less likely than those I’ve mentioned previously, it is far from impossible. The current leadership of the Democratic party will go pretty far in their defense of child killing.


Finally, not all pro-life states are equal. Some states such Idaho have abortion bans with dangerous exceptions for rape and incest. Anyone familiar with the history of abortion before 1973 knows that it was never too difficult for a woman to exploit these exceptions and kill her child. There was always a pro-abortion judge available who would sign a woman’s rape waiver even if they suspected the woman was lying, and what was true then is still true now. Other states such as Michigan have bans in place which pro-abortion authorities simply refuse to enforce! (2)


The biggest reasons to doubt the efficacy of Dobbs, however, are more abstract.



ROOTS OF THE PROBLEM: POLITICAL POLICY


Dobbs has reinforced two very false and deadly beliefs, namely that the Supreme Court is the final and unquestionable arbiter of the Constitution, and that the Constitution says nothing about abortion.


The 5th and 14th Constitutional Amendments both affirm the inherent right to life of all persons. Since preborn children are persons (3) this means that abortion (and all forms of murder) are already illegal nationwide! Some pro-life leaders have begun to recognize and discuss this fact, but most are silent, either out of ignorance or fear of appearing out-of-step with the consensus.

... nor shall any person ... be deprived of life, liberty, or property, without due process of law ...
5th Amendment
...nor shall any State deprive any person of life, liberty, or property, without due process of law ...
14th Amendment

Following the lead of the late justice Antonin Scalia, the current Supreme Court does not seem to affirm that the term “person”, as used in the Constitution, applies to preborn children. (4) But as various legal scholars and historians have demonstrated, this is ignorant. Americans in the late 18th Century may not have understood particular details about embryological development, but they roundly affirmed that when a human being existed in the womb, that human was a person.


Sadly, the majority of Americans, both left and right, never question the authority of the Supreme Court to determine what the Constitution means, even if those decisions rob entire groups of people of their humanity. Considering that nothing in the Constitution and nothing in the definition of a “court” justifies such unbounded obedience, our compliance is shameful. We should have demanded our elected leaders defy the Supreme Court (and any government institution that embraces a dehumanizing interpretation of the Constitution) and prosecute abortion as murder. But instead we have let them hide behind a façade.


This is one of the greatest tragedies of the past 49 years. If the Constitution prohibits child-killing, no state has ever been required to tolerate it. Instead of passively accepting the imposition of abortion clinics, pro-life governors have always had every legal right to merely close their doors and prosecute everyone involved. It may be that such prosecutions would be dismissed upon appeal by corrupt Federal courts, but that is not a reason not to do it. This strategy would have worked pretty well: no business wants to be constantly embroiled in litigation again and again, and few abortionists are dedicated enough to endure jail time each and every time they kill.


Pro-life presidents have also failed to do their duty. Thomas Jefferson was right: presidents do not answer to the Supreme Court but the law itself. The chief executive is well within his rights to simply send Federal marshals into each and every state and arrest anyone murdering their children. This would not be Federal overreach. Federal overreach is indeed a problem, but in certain cases so is Federal under-reach. As Hillsdale College Constitutional Law Professor Thomas West has stated “The president is strong where he should be weak and weak where he should be strong”. One area the executive branch should feel fully empowered is in the defense of innocent human life, because such is his Constitutional and moral duty.


It is unclear how many pro-life political leaders are aware that they hold these legal powers. They may be just as confused as the rest of us. But it’s possible that many have been afraid to act, fearing backlash from the voters or (in the case of pro-life states) punishment from the Federal government to which many states are deeply in debt. Thus, for five decades we’ve seen a consistent pattern: pro-life lawmakers who refuse to pass new anti-abortion laws (“the Supreme Court says we can’t!”) and pro-life executives who refused to enforce the US Constitution and (in the case of governors) the existing state anti-abortion laws (“I don’t have the authority!”)

For example, in 2019 Alabama passed a near universal abortion ban. Yet on the day she signed this ban into law, Governor Kay Ivey issued a statement effectively invalidating it! “At least for the short term” wrote Ivey, "this bill may similarly be unenforceable. As citizens of this great country, we must always respect the authority of the U.S. Supreme Court even when we disagree with their decisions. [emphasis mine]”. Thus for 4 more years babies were surgically murdered in Alabama. Even our most stalwart defenders of life kowtow to the oligarchic Supreme Court.

Dobbs has changed nothing about this shameful situation. True, some pro-life governors now feel “empowered” to enforce the laws they should have been enforcing all along. But as I think I’ve demonstrated above, these laws are often full of holes that will allow abortion to continue in many different ways, and many political leaders have already proven that they will look for any excuse available to avoid doing their duty. Just wait. They will soon find other reasons to delay.

The American public still holds an incorrect view of the Supreme Court as final and unquestionable arbiter of the Constitution. The mainstream pro-life movement has expended decades of time and hundreds of millions of dollars changing the ideological makeup of the Court while never questioning the underlying (and false) assumptions that supposedly justify this effort. Meanwhile more than 65 million innocent lives have been destroyed. Now the movement has finally achieved its first substantial “victory”. But should the makeup of the Court change again (via the death or impeachment of conservative justices or the addition of more total justices) we could soon be right back where we started!



ROOTS OF THE PROBLEM: PRO-LIFE APATHY


Finally and perhaps most fundamentally, our post-Roe world looks too much like the world of just 6 months ago. Most Americans are either pro-abortion or don’t really care. The majority do not understand the issue and deny the full personhood of the preborn. We have let them be this way.


Every few years or so some pro-life organization will tout a new survey that claims to prove we’re “winning the hearts and minds of America”. The proof for this claim is usually a poll that shows a small increase in the number of respondents self-identifying as “pro-life”. Having observed the history of these polls, I can confidently say that there has been no net change in the social split between pro-life and pro-choice for almost forty years. Worse still, as anyone who has spent any time discussing abortion with the man-on-the-street can tell you, there are many people who claim to be “pro-life” but who are really just “personally pro-life” or “pro-choice with exceptions".

This fact is really the root of nearly all the other problems previously mentioned. Generally speaking, highly unpopular and inconvenient laws cannot be foisted upon an unwilling populace. Laws do not enforce themselves. Police must be willing to seek out and arrest, judges must be willing to convict, and normal citizens must be willing to act as witnesses against perpetrators. A population that is not aggressively opposed to baby-killing will not produce these kinds of people. Though the analogy isn’t perfect, it’s the war on drugs all over again.


We have failed miserably to convince America that abortion is a moral evil that should be abolished. I have written elsewhere about why this is. Suffice to say that a movement consisting of 99.99% donors and only .01% workers is not going to be as successful as a movement with “all hands on deck” in which the average participant routinely takes significant risks, gives significant amounts of time and makes significant sacrifices. America remains tolerant of baby-killing because we, the anti-abortion people, are also tolerant of baby-killing. We have neither spent time educating them (this is a job for the professionals!) nor impressing them with the wicked nature of their practices (can’t offend anyone!). For most of us, abortion is a topic for prayer and discussion, and occasionally an issue to vote upon. It is not something that occupies our minds or influences our behavior day to day.


CONCLUSION

In summary, Dobbs vs Jackson was possibly the best news we’ve had in the abortion battle for decades, but it’s still not very good. The Supreme Court cannot put the genie back in the bottle again simply by correcting its original mistake. New laws may now go into place in various states, but the abortion industry will find was to circumvent them as they always do. A wicked, child-hating population will continue to kill children because no one has taught them to do otherwise. 2022 has been an exciting year, but we are actually still in the same boat, and paddling quite inefficiently.


There is hope, though. If we alter our behavior long term we will get different results, both legally and socially. We must stop giving our politicians and ourselves a pass. We must be ready to actually contribute something more than money and good-will. We must be ready to suffer so that in time, innocent babies don’t have to. The sooner we learn this the better.


 

  1. Actually, such DIY abortions have probably been common for much longer than we realize, yet discussion about them only began in the late 2010s, first among abortion supporters and only quite recently within pro-life circles. Prior to this we only heard about so-called "telemed" abortions which still necessitate the client to visit a brick-and-mortar abortion clinic and communicate with an abortionist via remote platforms. Almost nothing was said about the phenomenon of mail-order abortions. I highly suspect the abortion industry was not eager to promote a method of baby-killing guaranteed to put most of them out of business. I hesitantly suspect the pro-life establishment was equally uninclined to talk about it, as it tends to render pointless all the time and funding they’ve spent on politics and exposing the abortion industry.

  2. It is also not hard to imagine every new pro-life law being tied up in court for years, if only on technicalities. The abortion industry has always been very successful in pushing their agenda through the courts. So long as the makeup of the Supreme Court remains as is, litigants cannot claim pro-life laws are unconstitutional on the grounds they violate a person’s right to privacy. But there is no reason they cannot be found unconstitutional on other (albeit equally spurious) grounds. There are many pro-abortion judges at all levels of our judiciary, and many would be all too eager to entertain even the most silly of lawsuits lodged against a pro-life state.

  3. Naturally abortion advocates will debate this point. Let them! Laws need not define each an every word used within themselves (an impossibility). Public officials should discover the original intended meaning of the words used in our laws and act accordingly. An individual does not need to be in consensus with the majority to do what is right.

  4. Of course the Court has made this tragic mistake before. The infamous Dred Scott decision of 1857 was based on similar reasoning: the way the Constitutional framers treated certain people defines the meaning of “person” in the document they created. Such thinking was false then and it is false now.


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