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A Culture of Life? Don't Count on It
An unusually personal newsletter
Greetings from Aspen, where I’m attending the Ideas Festival. (And yes, it is staggeringly beautiful here.)
Fair warning: this is likely to be the first of several attempts to address the many ways our world has been upended by the Supreme Court’s Dobbs decision. So don’t expect it to answer everything… because there are a lot of questions.
Before we dive in, I have to tell you a story.
When I was a 19-year-old college student, with few if any significant life skills, I got my 18-year-old girlfriend pregnant. I will spare you the details.
The pregnancy, however, could not have come at a more awkward time; it meant that our educational plans would have to be scrapped. No graduate school for me; no undergraduate degree for her.
Worse, we were utterly unprepared and unsuited in every possible way for parenthood. And I am not engaging in any sort of false modesty when I tell you that my incapacity for fatherhood at that age cannot really be overstated. Emotionally, financially, and practically, I wasn’t prepared for what was about to happen.
I was an English literature major, which I enjoyed and where I learned quite a lot that has held me in good stead. But at the time, it was perhaps the most impractical degree imaginable; there was shockingly little interest among employers in my term papers on Paradise Lost. I was, in other words, utterly unemployable. Even in our contentious times, there was a broad consensus among would-be employers: Not Me.
So, by every rational, prudent, sensible, judicious standard in the world, it made no sense to go ahead. But we made a choice; and I fully understand that others may have made a different one.
And that choice was the most consequential of our lives.
My daughter is named Sandy and she is a beautiful and talented writer and artist. Her children — my grandsons — are named Elliott and Silas, and they are flying in from France for a visit in a few weeks to attend their uncle Alex’s wedding and meet their two cousins — Charlotte and Emilia (with a third on the way).
Decades ago, two stupid, incautious teenagers created whole worlds.
I need to tell this story to put what follows in context.
I spent the next 40+ years very much a part of the pro-life movement. For well over a decade, I was the regular master of ceremonies of Wisconsin Right to Life’s annual dinner. For nearly 50 years I was allied with the folks who are now celebrating their victory in the Supreme Court.
So where am I? How do I feel today about the demise of Roe v. Wade?
The short answer: it’s complicated.
As a legal matter, I shared RBG’s view that Roe itself was poorly decided, and had hoped that it might be modified, or even overturned, without tearing apart the constitutional right of privacy. But the radicalism of the majority’s decision in Dobbs shouldn’t be glossed over for conservatives; nor its lack of prudence and compassion for the real-world consequences of ripping out a law that millions had relied upon for 50 years. The court’s ruling plunges a fateful (and deeply personal) choice into the cauldron of the culture war at a moment of maximum demagoguery, extremism, disinformation, and bad faith.
I find myself in special sympathy with Chief Justice John Roberts, who wrote, “Both the Court’s opinion and the dissent display a relentless freedom from doubt on the legal issue that I cannot share.”
Roberts tried to caution his colleagues against making sweeping and abrupt changes in settled law. “A thoughtful Member of this Court [Justice Felix Frankfurter] once counseled that the difficulty of a question ‘admonishes us to observe the wise limitations on our function and to confine ourselves to deciding only what is necessary to the disposition of the immediate case.’”
And America — including the pro-life movement — is not ready for the consequences.
I still believe that every birth is a miracle and that we should regard every human life as infinitely precious. That means that every abortion is a tragedy and a lost world.
But over time I also came to believe that the movement’s focus needed to shift from coercive legislation to addressing the fundamental choice that women had to make under often harrowing circumstances. The widespread use of ultrasound changed the debate, by giving shape and a face to the unborn. But if we were ever to create a culture of respect, that meant changing hearts and minds — rather than criminal statutes. It also meant taking seriously a more holistic approach to a culture of life, which Catholics refer to as the “seamless garment.” That meant addressing crisis pregnancies with compassion and support, as well as strengthening pro-family, pro-child policies that tipped the scales toward choosing life — as we did more than 40 years ago.
But as you have undoubtedly noticed, the record of the pro-life movement has been, at best, shaky, even before the toxic transformation of our politics.
I still think of myself as pro-life, but like my colleague Mona Charen, I’ve changed my attitude toward the movement itself, because I’ve lost my trust in the judgment and good faith of many of my former colleagues. A movement that should have celebrated compassion, yoked itself instead to a politics that celebrated performative cruelty. (Not to mention the many “pro-lifers” who embraced bizarre anti-vax conspiracy theories that have cost hundreds of thousands of lives.)
So I share David French’s conflicted reaction. In his weekend newsletter, he reviews his decades of work on behalf of the pro-life movement
Through it all, I was guided by two burning convictions—that Roe represented a grave moral and constitutional wrong and that I belonged to a national Christian community that loved its fellow citizens, believed in a holistic ethic of life, and was ready, willing, and able to rise to the challenge of creating a truly pro-life culture.
I believe only one of those things today.
To be sure, some conservatives (even Marco Rubio) have recognized the need for pro-lifers to embrace pro-child policies. Others have tried to create an infrastructure for post-Roe families. These efforts need to be extended and expanded.
But it seems naïve to think that the pro-life GOP will suddenly pivot toward creating the kinds of help that young mothers will need. Just look at a map with an overlay of abortion bans with the lack of prenatal care and Medicaid expansion.
Unfortunately, the states with the most draconian bans will be the least likely to also pass legislation that enhances the social safety net of programs for children and families.
So instead of a renewed reverence for life, post-Roe America will be even more bitterly polarized. In recent years, our debates over everything from masking to race have become more shrill and tribal. Litmus tests overwhelm reason, and rage drowns out prudence.
And now, out of some great cosmic karma, we get to do abortion. The results are already ugly. As French writes:
In deep-red America, a wave of performative and punitive legislation is sweeping the land. In the abortion context, bounty-hunting laws in Texas, Idaho, and Oklahoma turn citizens against each other, incentivizing lawsuits even by people who haven’t been harmed by abortion. The pro-life movement, once solidly against prosecuting women who obtain abortions, is now split by an “abolitionist” wing that would not only impose criminal penalties on mothers, it even calls into questions legal protections for the life of the mother when a pregnancy is physically perilous.
Because the arc of the right now bends toward perpetual outrage and escalation, it will only get worse. We shouldn’t look for either compromise or restraint. The GOP will be far more passionate about attempting to ban abortion pills than they about expanding child tax credits or parental leave laws. The party is already shape-shifting from supporting states’ rights, to pledging to enact a sweeping national ban. Don’t be surprised when purists object to 15-week bans (if its murder, why allow it at all?), or appear indifferent to crises like ectopic pregnancies.
Nor should you be surprised if the focus of punitive legislation turns toward women. Consider this remarkable proposal touted by the Heritage Foundation’s Jay Richards. (Richards is the William E. Simon Senior Research Fellow in Heritage’s DeVos Center for Religion and Civil Society.)
The authors point out the inconsistency of considering abortion murder, but not sanctioning women themselves. “We don’t want to criminally prosecute women who illegally abort,” they write. “Nor do we want to shrug and wink, as if women were all hapless victims, or abortion weren’t really a monstrous crime, as it is.”
Their idea? To treat women “who illegally abort the way we treat failed suicides.”
Women won’t go to prison. But they will face the real deterrent of a short but mandatory psychiatric custody, and mandated counseling. God willing that will prove helpful to women after the devastating destruction that is abortion. By treating abortion as legally equivalent to attempted suicide, it will recognize and honor the life of the child.
It’s the best we can do, in this fallen world. And it’s not a political suicide pill.
(Yes, forcing women into “mandatory psychiatric custody” would indeed be a “political suicide pill.”)
And then we get to the larger issue of privacy. I’ve written a book on the subject, so I’ll have a lot more to say on this later.
We should actually be grateful that Clarence Thomas highlighted the larger implications of rejecting a constitutional right of privacy, While Justice Samuel Alito went to considerable pains to distinguish abortion from other issues like contraception, criminalized sodomy, and same sex marriage, Thomas went there:
Writing in a separate concurrence, Thomas declared that with Roe overturned, the Supreme Court should now “reconsider” a host of other major cases predicated on the 14th Amendment’s implication of a right to privacy, including recent rulings that protected the right to contraception and same-sex marriage.
“In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas wrote, referring to Supreme Court rulings that legalized contraception access, sex between two people of the same gender and same-sex marriage. “We have a duty to ‘correct the error’ established in those precedents.”
In future newsletters, I hope to make the case that conservatives should not follow Thomas into this black hole by rejecting privacy. For the moment, Thomas stands alone.
But we’ve been warned.
Roe’s End and the Phony Doctrine of ‘Potential Life’
The justices’ critique of Roe—that the right to abortion isn’t specified in the Constitution and isn’t “deeply rooted in this Nation’s history and tradition”—also applies to the putative constitutional rights to contraception, gay sex, and same-sex marriage. In his concurrence, Thomas essentially admits this. “We should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” he writes. He advocates “overruling these demonstrably erroneous decisions.”
Alito and Thomas have already challenged the right to same-sex marriage using the same arguments they now make against the right to abortion. Nine years ago in United States v. Windsor, Alito, joined by Thomas, wrote that “the Constitution does not guarantee the right to enter into a same-sex marriage.” He added that “the right to same-sex marriage is not deeply rooted in this Nation’s history and tradition.” The two justices repeated those points in their Obergefell dissent and again, just two years ago, in a statement against judicial protection of same-sex marriage and other “atextual constitutional rights.”
If Alito, Thomas, and their colleagues want to go back to a world where the Supreme Court guarantees only those rights specified in the Constitution—or even if they just want to roll back the doctrine of substantive due process, as Thomas proposes—that’s a defensible, intellectually consistent position. They’re free to argue that any right not named in the Constitution is fair game for legislation. What’s not defensible is pretending that this rollback applies only to abortion—and basing that pretense on a distinction invented by Roe itself.