Jacob Neu writes at The Lamp on Roe, Dobbs, and the future of pro-life advocacy:
We’ll need to remember the same tactics that got us this far: perseverance and planning. Little by little does the trick. Let not our zeal outrun our discretion. Every plan begins with the intended result, and our goal remains the same as when we began on January 22, 1973. We seek to make abortion illegal in the United States. But not only do we want to make it illegal, we want a culture that will, in the words of Pope John Paul II, “respect, protect, love, and serve life, every human life!” To get where we want to be, we must also acknowledge our current position. Here we must be brutally honest. In many ways we start further from our goal than we did in 1973, and the terrain is more treacherous. …
It is plain that in Dobbs the Supreme Court did the bare minimum we could have asked for. Yes, it overruled Roe, but the opinion limited itself to Roe’s myriad and manifest defects in legal reasoning. Dobbs does not take up the invitation of several amicus briefs that sought to establish fetuses as persons under the Fourteenth Amendment entitled to certain basic rights, whether on originalist or natural law grounds. In fact, the Court hardly articulates a reason for promoting the dignity of the child or the child’s right to life beyond acknowledging that it is something about which the country is fervently divided.
The Court could have chosen a different path, one exemplified by the West German abortion case in 1975. Two years after Roe, the German Constitutional Court interpreted statements in its constitution that “human dignity shall be inviolable,” and that “every person shall have the right to life and physical integrity,” as obligating West Germany to protect the fetal life developing in the mother’s womb, even against the mother, for the duration of the pregnancy. The German court held that “it should not be forgotten that developing life itself is entrusted by nature … to the protection of the mother. To reawaken, and … to strengthen the maternal duty to protect, where it is lost, should be the principal goal of the endeavors of the state for the protection of life.” The court permitted the state to withhold punishment for abortions undertaken where the woman’s life was in danger or cases of similar gravity, and West Germany subsequently established a system requiring doctor examination, counseling in favor of the child’s life, and a three-day waiting period. Nevertheless, the court held that “in the extreme case, … the lawgiver can be obligated to employ the means of the penal law for the protection of developing life.”
If only our Supreme Court had recognized in Dobbs an affirmative obligation of the state to protect the life of the child as well as the life of the mother. We should not neglect this “teaching function” of law, whereby the law provides the bounds for acceptable behavior and molds peoples’ attitudes over time. In 1980 in the US there were twenty-nine abortions per one thousand women of childbearing age; in Germany, there were nine. How many abortions could have been prevented had the Supreme Court adopted a position similar to that in West Germany?
If the justices think they will be out of the abortion business they are wrong. I anticipate numerous challenges from progressives. These will include serious questions, such as resolving conflicts between the application of state laws and any federal laws, and ridiculous ones, such as whether the Thirteenth Amendment’s ban on slavery makes a total abortion ban unconstitutional.
Still, many of the coming legal fights will occur in the state courts. Four states have explicitly rejected the right to an abortion, while eleven state courts have found a right to abortion in their constitutions already. We will need to overturn those provisions while articulating state-specific reasons why their constitutions protect the life of the child. Our strategy must be multifaceted. We must seek to change hearts and minds. We must make political alliances where possible to build support for reasonable, and increasingly restrictive, abortion laws. We will have to amend state constitutions. We will continue asking the Supreme Court to not merely be neutral, but to obligate the state to protect the child’s life.
Only this “whole of society” approach will do. For even if we could enact perfect laws, a community not ready to accept them will despise both the laws and the virtues they promote. As St. Thomas Aquinas writes in his Treatise on Law, “The purpose of human law is to lead men to virtue, not suddenly, but gradually. Whereupon it does not lay upon the multitude of imperfect men the burdens of those who are already virtuous. … Otherwise these imperfect ones, being unable to bear such precepts, would break out into yet greater evils.” In other words, we must seek laws that lead the states that are strongly pro-abortion to true human dignity, and we must also prepare them as a community to joyfully accept that dignity. Little by little does the trick.
The sooner we recover the classical legal tradition’s insight that the “purpose of human law is to lead men to virtue,” the better.