AMAC Exclusive – By David P. Deavel
Roe v. Wade is gone, but they marched again. Were it not for the Dobbs decision, today would have been the fiftieth anniversary of the Supreme Court decision that Justice Byron White described in his dissent as an “act of raw judicial power.” Some might ask why do it again. But this year is an especially important year to march, for there are some important lessons that have been and need to be learned by those fighting for the most vulnerable members of our society. There are also challenges that must be addressed.
The first lesson that has been learned is a comforting one. The movement is itself made up of people who recognize that the end of Roe is simply the end of one phase of the battle. The attendance at the March for Life in Washington, D.C., this year was robust. “I’ve got to tell you,” former Pennsylvania senator Rick Santorum told Politico, “I was a little nervous. I was concerned that people wouldn’t continue the fight. But based on this reaction, it looks like the grassroots has not moved on.” While we don’t have any official numbers, time-lapse photographs from the March show the growth and movement of a mighty crowd over the day. Even “mainstream” news outlets such as Reuters had photos showing the size of the gathering.
This is an unmitigated good. It shows that people in the pro-life movement know that the reversal of this heinous decision is something worth celebrating. It also shows they are ready for the work to come. The reversal of Roe kicked decisions about abortion back to the states, leading to a number of states severely limiting the procedure or largely banning it. Yet even if every state had outlawed the killing of innocent human life in the womb, women would still choose—or be pressured—to make this deadly decision and doctors, nurses, and others would still perform abortions whether the law allowed it or not. The fight for the protection of the most vulnerable members of the human race must ultimately be waged on the battlefields of the law and in human hearts.
Yet this brings us to a second lesson. The law does matter. The popular saying that law is downstream from culture is no doubt true. But only partially. Law shapes culture in many ways, providing incentives and setting expectations for what is possible and what is bearable. The pro-abortion predictions of utter disaster from states severely limiting abortion have not been fulfilled. Meanwhile, the numbers of abortions in those states have dropped marvelously. Data from Texas up through August of 2022 show numbers of abortions dropping from thousands of abortions per month to double and even single digits. While the state saw 2,596 abortions performed in June of 2022, there were only 68 abortions in July and 3 in August of this past year.
The third lesson follows from it. Now that abortion is a properly political issue, there has to be a concerted effort even in states where abortion has been sharply limited to keep it from being instituted via state courts, much more so in the states where courts have already protected abortion. While Kentucky made abortion illegal, voters in November 2022 rejected a ballot initiative that would have declared there is no right to an abortion in the state’s constitution—opening the door to fights to get it declared such. Montana voters defeated a ballot measure that would have declared infants born alive after an abortion legal persons, obligated medical care for them, and established monetary penalties and jail time for those violating the law. These results followed an August vote in Kansas defeating a measure stating that Kansas’s constitution does not give a right to an abortion and declaring that the state legislature has authority to ban it. Had it passed, this bill would have superseded a 2019 Kansas Supreme Court ruling that abortion was a constitutionally protected right.
These tough losses have not deterred pro-lifers. Kansas state Senator Chase Blasi has jumped back into the fray with a proposed bill that would allow cities and counties to ban or restrict abortion, while Montana legislation recently proposed would state that abortion is not a constitutionally protected right. Like Kansas, Montana’s Supreme Court has ruled that it is.
Whether these measures are smart ones or not is hard to say. Pro-life legislators are going to have to be prudent about what can be achieved in a given state and also very savvy about promoting such measures. They will have to deal with demographic changes caused by the Big Sort in the U. S. Montana, in particular, has been the destination for many blue state migrants who have brought their voting patterns with them. Kansas’s population has been growing and has centered more around Kansas City. These changes will require new thinking. Additionally, pro-life forces are vastly outspent by the abortion lobby. Now that the battle against Roe has ended, we may hope that financial resources will be focused more on battles in individual states that have the possibility of positive reforms.
A corresponding lesson is that strategies will have to be developed for blue states. If demographic changes have made some states where life has a shot more vulnerable, they have rendered seriously blue states almost impervious to legal change. The extremism of California and New York will be difficult to defeat at the legal level. Governor Kathy Hochul has commanded that abortion pills be provided at SUNY and CUNY campuses and New York City Mayor Eric Adams has allowed city-run health clinics to give them out. Given the exodus of conservative people from such states, it is nearly impossible for legislation or ballot measures providing even the lightest of regulation or restriction on abortion to pass. When law is not there to shape culture, those seeking to protect life must focus on culture to protect what life they can. And given that the percentage of abortions committed by means of abortion pills continues to grow, strategies of communication that relied on the horrors of surgical abortion will have to change.
Money will still have to be spent on the national level, however. That lesson came home in a dismal way the day of the March. The supposedly “devout Catholic” Joe Biden released a proclamation declaring that the Court got Roe “right” and calling on Congress to make it the law of the land. For the sad fact is that the federal government under the Democratic Party’s leadership is hostile to the unborn and hostile to those who want to protect them. While the HHS under the Trump Administration issued a 2019 rule that protected from punishment those in health care who objected to abortion, assisted suicide, sterilization, and so-called “gender-affirming” surgeries on the basis of religious belief or conscience, the Biden Administration, which promised to revoke it, has now proposed a new rule and entered it for the mandatory sixty days of public comment. This new rule would force health care providers who object to such actions on moral grounds to refer patients to other doctors—thus requiring a kind of involvement.
At the same time, our politicized Justice Department is busy prosecuting pro-life activist Mark Houck, a father of seven who has been charged with violating the Freedom of Access to Clinic Entrances (FACE) Act for an incident in October 2021 in which an abortion clinic escort claimed Houck shoved him. Houck says the claims are not accurate and that the escort was harassing his then-12-year-old son. While the local authorities had not brought a case against Houck, the escort made his own criminal complaint, subsequently dropped because the complainant did not come to any of the court proceedings. But then the DOJ got involved, and despite Houck’s attorney’s offer to bring Houck in, Houck’s house was raided by around two dozen heavily armed agents and he was taken away with his wife and children looking on—the kind of raid one might expect on an armed criminal, not a mild-mannered father of seven.
It’s not clear what Houck’s fate will be. In a pre-trial hearing, Houck’s attorney, Peter Breen of the Thomas More Society, presented evidence that “Congress intended to limit the FACE Act to patients and staff working in the clinic, and not to take sides between pro-life and pro-choice counselors and escorts on the sidewalk.” He argued, surely correctly, that the DOJ’s prosecution was simply “pure harassment, meant solely to intimidate our nation’s pro-life sidewalk counselors who provide vital resources to help pregnant women at risk for abortion.”
Given that close to 80 pro-life clinics have been vandalized, attacked, or even burned—also violations of the FACE Act—since the Dobbs leak, and that the FBI has not arrested a single individual, this use of federal law enforcement resources to intimidate pro-lifers takes on an ominous tone. Perhaps realizing how bad this looks, the FBI finally offered a $2500 reward this week for information on three of the most heinous attacks in the Pacific Northwest—nearly six months later. That two weeks ago 200 House Democrats refused to vote to condemn such violence or the attacks on over 100 churches throughout the country is a sign of where priorities lie.
Republicans as a group may sometimes be inconsistent allies to the pro-life movement, but, with vanishingly scarce exceptions, the Democrats are hostile opponents who will work through legislation and judicial appointments to protect and fund abortion. Their control of the administrative state means that pro-lifers cannot afford to focus purely on the local level.
While the lessons sketched above are largely in the nature of difficult challenges, this should not overshadow the great joy that is to be taken from the disappearance of Roe from our legal system. The defeat of that evil ruling is both a great accomplishment and a great gift. Indeed, it is an answer to prayer and a fulfillment of the wish in “America the Beautiful” for our country: “God mend thine every flaw.” We can give thanks that this flaw has been mended, taking hope that the greater flaws of an abortion culture will be mended as well. We will work to welcome and protect innocent human life. Fifty years of loving service, legal work, counseling, and prayer brought us to the end of Roe. Imagine what another fifty might bring—and get to it.
David P. Deavel teaches at the University of St. Thomas in Houston, Texas, and is a Senior Contributor at The Imaginative Conservative.
