AMAC Exclusive – David P. Deavel
Democrats have nothing to brag about and a lot to deflect from in the fall’s election. Whatever Kamala Harris says, the border is not secure and, we now know, is being approached by Venezuelan criminals released from prison and sent there by Nicolas Maduro. Regular old American criminals are also being released from jail without bail by big-city Democratic district attorneys who do so on the basis of “equity,” which apparently means giving more people a chance to be victimized. Illinois is set to become cash-bail free by 2023, thus bringing the peace and security of, ahem, Chicago to the whole state. Inflation continues to wreak havoc on ordinary families—making the average American lose about $4,200 in income over the last year according to one estimate.
So what can Democrats talk about to scare Americans if national security, personal security, and our pocketbooks are off the table?
The answer is abortion. With the Dobbs decision delivered and several states have begun bans or near bans on most abortions, the Democrats have begun to talk about abortion to distract from their acidic crime policies and their affection for amnesty for illegal immigrants—as long as they stay out of Martha’s Vineyard!
Will it work? Doubtful. Mary Chastain at Legal Insurrection showed this week that abortion is not what people are searching for on Google—the border and the economy are. That’s not just red states. That’s all Americans.
But the politicians and would-be politicians keep talking about it.
What are they saying? Politically approved election denialist Stacey Abrams rehearsed the unscientific claim that: “There is no such thing as a heartbeat at six weeks. It is a manufactured sound designed to convince people that men have the right to take control of a woman’s body.” This falsehood, which seems to have been pioneered in the Atlantic and repeated in The New York Times, was instantly defended by the Washington Post’s narrative, excuse me, “fact” checker Glenn Kessler on Twitter who cited NPR.
Never mind that the National Institute of Health says otherwise.
Even worse as a lie but better for laughs is “devout Catholic” Joe Biden’s telling Democratic donors that the Catholic Church no longer holds that abortion is wrong in all circumstances. You will not be surprised to find out that the Washington Post did not, in its reporting, check this fact either. Democracy may die in darkness, but you’ll never see a ray of light on abortion from our legacy media or from Democratic politicians in the national spotlight.
In short, the pro-abortion case continues to rely on falsehoods as it always has. This should not be surprising. As Aleksandr Solzhenitsyn long argued in the context of Soviet Communism, ideological lies demand violence and unjust violence can only be defended by lies.
I was thinking about this political turn this weekend while attending the annual convention of the Fellowship of Catholic Scholars. Two of the plenary speakers addressed the world post-Dobbs. Renowned legal scholar and Christian ethicist John Keown spoke on Friday night about the past: the true history of abortion. Legal scholar and pro-life lawyer Teresa Collett spoke Saturday on what we face in the future. In both cases, the key thing to note was the truth.
Professor Keown addressed histories of law that have been repeated since the time of Roe that was famously (or infamously) advanced by legal scholar Cyril Means and historian James Mohr. Abortion, it was claimed, was never really considered criminal under the English common law. Further, it was claimed, abortion was generally legal and those state laws banning abortion were not really about abortion but about something else—usually described as either a desire to protect women from unsafe abortions or perhaps a means by the male medical profession to squash female medical competitors. Keown, author of the authoritative Abortion, Doctors, and the Law: Some Aspects of the Legal Regulation of Abortion in England from 1803 to 1982, showed, using both the giants of English law such as Blackstone and William Coke and individual cases, that what the pro-abortion historians have claimed was not true: “There never was a common law liberty, much less a right to abortion in the common law.”
So too with American laws in the states. Using his own research and that found in Joseph Dellapenna’s Dispelling the Myths of Abortion History, Keown demonstrated that American jurists and legislators knew what the common law really said. They were not simply trying to protect women but the lives of unborn children. And it was no surprise that many of the laws those states passed against abortion were passed around the time they had approved the Fourteenth Amendment, which addressed equal protection under the law in the context of Reconstruction. Keown said that in Dobbs we see the real history that contrasts with what Harry Blackmun passed on in Roe—and other justices did in later cases. “Justice Alito’s historically informed judgment for the Court accurately recognized: the common law crime and the prevalence of anti-abortion legislation at the time of the passage of the Fourteenth Amendment.”
Pro-life citizens need to know these histories so that as these lies circle back again in their states, they will be prepared to answer them. And answer them they must.
Professor Teresa Collett’s talk, titled “Roe’s Legacy: 50 States and More National Battles for Life,” noted that post-Dobbs, pro-lifers are a bit like the dog that caught the car. What now? The answer is, per her title, that now that Roe is gone, the battle has now become dozens of battles that are fought at the level of the state.
Couldn’t we do something that settles things for the whole country? It doesn’t seem to be the case now. The pro-life movement failed to pass a human life amendment to the Constitution in the 1970s and 1980s. Despite Lindsey Graham’s attempt, it does not seem possible for Congress to legislate on abortion as legal scholars John Yoo and Glenn Reynolds have argued. And though an important amicus brief by the legal scholars John Finnis and Robert George for Dobbs argued that the historical connection between state abortion laws and the Fourteenth Amendment is strong enough to show that the original understanding of that amendment’s framers included unborn children, the Court did not take that up in their decision. So here we are.
Collett acknowledged the difficulty but argued for perspective. “Advancing legal protection for every unborn child through the political maze of fifty diverse states is a daunting task, but as a friend of mine said, ‘it’s a d— sight better than where we have been the last fifty years.’”
The reality is that the pro-life movement not only has a fighting chance to change hearts but to change laws now. Some states have begun initiatives to protect unborn children in state constitutions while others have asked courts for relief from decisions based on Roe. Collett indicated that there are a great many other options for lawmakers. Indeed, she listed a couple of dozen ideas. Here are a few of the many.
- Prohibit live dissection and saline abortions where abortion is legal to post 13 weeks.
- Restore parental authority over abortion decisions of minors by requiring parental consent absent emancipation and eliminating judicial bypass and other alternatives (e.g. “relative consent”). Be sure to review state mature minor statutes related to pregnancy, drug abuse, etc., and make sure it supersedes.
- Eliminate or limit “health” exceptions in abortion prohibitions and regulations.
- Prohibit medication abortions after 12 weeks.
- Require in-person administration of medication abortion by a physician.
- Prohibit mobile medical clinics from providing abortion services.
There were a lot more that she listed—and she noted that she hadn’t even covered all the ideas. The field of pro-life legislation is ripe for harvest, but the laborers are few. Pro-life lawyers and legal scholars are generally outnumbered and outspent by the forces of big abortion. Collett described the pro-life movement as David facing down Goliath—or rather many Goliaths. On the part of the state, there is the Biden Executive Order on abortion, which includes a plan for our federal government to organize teams of pro bono lawyers to fight for the abortion license—something the federal government does not do for any other issue. And to take one example on the business side, Warren Buffet has donated billions to the abortion industry and seems set on donating billions more through his various family foundations.
It’s not just legal representation where pro-lifers are outgunned. American elites have largely chosen to side with abortion and against life. Sadly, Collett noted, this has the obviously partisan edge: pro-life Democrats are a tiny minority. It can be hard to find people in fields of medicine, business, and other fields who will stand up for life. Especially those who are willing to do the hard work of countering the falsehoods put out by politicians, lawyers, journalists, and, alas, scholars and doctors.
Appealing to our group of scholars representing many different academic disciplines, Collett challenged us to do the hard work of telling the truth and using our skills to help pro-life lawyers and legislators who often need expert testimony and research that will have real-world consequences for the women who are hurt and the children who are killed by abortion. “I don’t care what your discipline is, I need you.”
The need is great, but it has been met time and again. It’s a hopeful sign that in this election cycle, politicians who don’t want to talk about the truth about other aspects of American life are not convincing voters through untruths about abortion. That hopeful sign follows upon an even more hopeful sign. Despite more than fifty years of lies about history, the law, and biology from the cultural Goliath bulking Roe, it was defeated by a steady stream of Davids slinging their small, smooth stones of truth. It’s not surprising, for, as Solzhenitsyn said in his 1970 Nobel Address, citing an old Russian proverb, “One word of truth outweighs the whole world.”
David P. Deavel is an Associate Professor of Theology at the University of St. Thomas in Houston, Texas, and a Senior Contributor at The Imaginative Conservative.