Every year since 1974, thousands of people travel to Washington, D.C. to participate in the annual March for Life. My family and I have joyfully marched with men, women, and children of all ages to the very steps of the Supreme Court calling for and praying for the end of Roe v. Wade, the end of abortion, and the protection of the dignity and value of every human life.
1. This year, with the battle moving to state legislators, the march changed its route to see the House and Senate office buildings.
On June 24, 2022, the steadfast prayers of countless millions who prayed and advocated across the entire country were answered when the U.S. Supreme Court issued its long-awaited opinion in Dobbs v. Jackson, which overturned Roe and Casey.
In my last essay, I focused on the legal merits of Dobbs, but now that we live in a post-Roe world how should Christians respond? As we consider a pro-life strategy beyond Dobbs, I have four points on how we continue our fight to end abortion and promote a culture of life within the United States.
1. Celebrate the Dobbs Decision and Use Your Freedom Well
We should celebrate and rejoice at the justice of the Dobbs decision. The overturning of Roe and Casey ultimately stems from God’s common grace on our nation, demonstrated in the raising up of countless lawyers, politicians, judges, crisis pregnancy centers, pro-life organizations, and “marchers” over the last fifty years to fight for the protection of the unborn. In a time when our culture often cannot determine right from wrong or truth from untruth, give thanks to God that he has been gracious to our nation.
Christians and churches cannot now miss how Dobbs should spur us to further advocate for the end of abortion. Dobbs should encourage us to press on and use the political authority that we have in this nation with full knowledge that, if we unite and argue for biblical truth, God can mightily use us for good.
Rejoice also for the new state-level opportunities that we have to argue biblically for the end of abortion and to craft legislation to protect the lives of all the unborn. This task will be difficult, but the door is now open for action.
2. Take the “March For Life” To Every State Capital And To Your Neighbor
Christians and churches must now direct their efforts to fight for the total end of abortion within each state capital.
One effect of Roe and Casey was the greater centralization of authority within the federal government. Often, when our nation “federalizes” a policy issue, we de-emphasize the importance of our state and local officials and opt for federal solutions instead of considering solutions at the state and local level.
Can you name the President of the United States? How about your U.S. Senator or U.S. Representative? An informed voter probably could do so, but what if I told you to name your state representative? How about your state senator? Or what about your mayor or your representative on your city or county council? There has been less of an emphasis on our state officials compared to federal officials, yet state officials arguably affect our daily life more than our representatives in Congress or even the President.
2. Just consider the amount of authority wielded by state and local governments in the context of the COVID-19 pandemic, including health regulations, vaccination requirements, and the shutting down of churches.
This is a long-standing problem that transcends Roe and Casey, but Dobbs does mean that Christians and churches must re-emphasize the importance of electing pro-life state representatives, state senators, governors, state judges, and city and county council members.
And while we should focus on state and local leadership, we shouldn’t forget the obvious: talk to your neighbor! We need to talk to our neighbors about protecting unborn life and promoting a culture of life in our local community. That means talking with your neighbor, but also supporting and starting new crisis pregnancy centers and ministries throughout our country that are equipped to help counsel, mentor, and educate pregnant women, fathers, and families who are facing crisis pregnancies. It also means working to reform our burdened foster care system and working to lower the costs of adopting children in the United States.
Contrary to modern revisionist history, Christians and churches have long been at the forefront of fighting for a culture of life in order to advance truth and care for the most vulnerable in our community. But now that Dobbs has returned the issue of abortion to the states, our efforts to legislate to end abortion will require a state population that will elect pro-life legislators and help steer the country to defend unborn life. That means engaging and swaying your neighbor will be the key to turning the tides towards the protection of unborn life. And Christians should lead the charge.
3. State Legislative Strategy – the “North Star” for the Total End of Abortion
Human life begins at conception. Any abortion that destroys a living, unborn human life is evil and must be stopped.
So, as we begin the task of advocating for the end of abortion within each state, we should ensure that we move to our “North Star”— charting a legislative strategy towards the complete and total end of abortion within each state.
But no two states are alike and thus no two legislative strategies will look the same. So, as we continue to work city-by-city, county-by-county, and neighbor-by-neighbor to persuade and argue for the end of abortion, we need to assess where every state is at and recognize that legislating begins at different places depending on the state and nature of the existing laws.
This means that we should be prepared in an applicable state legislative strategy to shrewdly act in a manner that makes incremental progress by pushing legislation that “moves the ball” in the right direction, knowing that the more we can the move the ball closer to our “North Star,” the more lives we save. And as we continue to talk to our neighbors and build a culture of life in our respective states, we hopefully move towards the ending of abortion.
4. Exercise Caution With The Use of Federal Authority
Although Dobbs has now placed a greater emphasis on state and local legislative strategies, it does not mean that all federal options are off the table. However, we must be cautious with the use of federal authority, especially since the scope of Congress’ power to prohibit or regulate abortion is an unanswered legal question.
3. Some argue that the Supreme Court upheld Congress’ partial birth abortion ban in 2007 (Gonzales v. Carhart, 550 U.S. 124 ), thus giving them power to regulate abortion. Although SCOTUS did uphold the Act, it decided on whether the Act was in compliance with prior precedent (Roe and Casey). Justice Thomas argued that the Court didn’t decide whether Congress was appropriately using its authority under the Commerce clause. As such, to date, SCOTUS has not decided on this issue. and in a Post-Roe world, the legal challenge of any Congressional law to regulate abortion would still raise the question whether they have the authority to do so.
But caution must be exercised because the federal government is (or is supposed to be) a limited government acting only under powers enumerated within the Constitution. We should heed the same warning from America’s founders that dissuaded them from consolidating federal power, namely, that consolidated power can lead to tyranny and a decreasing ability for citizens to influence the future trajectory of our nation.
Federal elections also come and go with powers shifting as quickly as the direction of the wind, so if we use new federal powers to limit abortion and overturn the laws of each of the fifty states, we need to also understand how that same power can be used to expand abortion in the future. It’s one reason why there is more stability in our nation when we de-centralize power away from Washington and return it back to the states.
With this in mind, let’s consider U.S. Senator Lindsey Graham (R-SC) and his widely discussed bill to nationally prohibit abortions after fifteen weeks of pregnancy. To justify Congress’ authority, Graham cites Congress’ power to regulate interstate commerce and the Fourteenth amendment to the Constitution.
4. See Senator Lindsey Graham, Graham Introduces Legislation to Protect Unborn Children, Bring U.S. Abortion Policy in Line with Other Developed Nations; Press Release; September 13, 2022.
Much could be said on this matter, but I am not of the opinion that either legal citation is a valid constitutional justification for Congress to regulate abortion. The Commerce Clause is not a viable basis to sustain the prohibition of abortion (let alone a 15-week restriction) and would likely lead to future Congressional abuse. I also am not convinced that the Fourteenth amendment can plausibly be used to prohibit abortion especially in the way that Graham proposes, but I do acknowledge that the issue currently divides a number of legal scholars and the debate on this matter should continue. But because there is still substantial debate and Congress has never used the Fourteenth amendment in this manner, I do not recommend incorporating its use into a larger pro-life strategy at this time.
5. The basic argument is that the Fourteenth Amendment can be construed to also protect “unborn” persons thus opening the door for Congress (per Section 5 of the Fourteenth Amendment) to pass legislation to protect “unborn persons” as a protected class.
6. Briefly, if you argue that the Fourteenth amendment applies to the equal protection of “unborn persons,” setting the minimum federal protection at 15 weeks is at best arguing that personhood doesn’t begin until 15 weeks (which I vociferously reject) or it weakens his argument that Congress is sufficiently protecting the unprotected class of unborn human persons, who are unborn persons before 15 weeks).
7. For scholars who argue that Congress should use the Fourteenth Amendment to ban abortion, see Robert George and Joshua Craddock, Even if Roe is Overturned, Congress Must Act to Protect the Unborn, Washington Post; and John Finnis, Abortion is Unconstitutional, First Things. For scholars who argue the opposite, see Jonathan H. Adler, Could Congress Prohibit Abortion if Roe Is Overturned, Reason; and Ed Whelan, Doubts About Constitutional Personhood, First Things.
But let’s assume for sake of argument we could pursue federal legislation. Why then would we set a minimum federal protection at fifteen weeks? Does this not compromise the Christian truth that life begins at conception? It certainly does. Prior to Dobbs, Graham’s bill made more sense because it was trying to curtail the harmful precedents of Roe and Casey across all 50 states, but now that Roe has been overturned and states are free to set abortion policy, should Christians and churches not argue for the complete and total end to abortion?
But couldn’t a fifteen-week prohibition just be that incremental step to a total ban at the federal level? Unlikely. Establishing a fifteen -week minimum federal protection opens up the door to adjust the policy of what is an “acceptable” abortion. The Republican Party may initially set the level at fifteen weeks, but the Democrat party would immediately expand abortion access beyond the precedents of Roe and Casey when they seize power. And all the while our efforts at the state level to end abortions is undoubtedly stymied by the preemption of federal legislation.
So, what can Congress do? Congress has immense power over the use of federal taxpayer funds and we should, at a minimum, continue to support the Hyde and Weldon amendments. But, in a post-Roe world, we should also consider how Congress can now better condition the state receipt of federal health dollars, particularly Medicaid dollars, to prohibit abortions. With Dobbs overturning the right to an abortion, Congress now has further opportunity to use funding conditions to incentivize state governments to completely stop abortions.
8. In September 2021, the Democrat controlled House of Representatives passed H.R. 3755, the deceptively named “Women’s Health Protection Act,” which would preempt every state and federal law on abortion with standards that would permit abortions beyond what was even required in both Roe and Casey.
9. The Hyde Amendment is an annual appropriations rider that prohibits the use of federal taxpayer dollars for abortion.
10. The Weldon Amendment is an annual appropriations rider that prohibits States who receive federal dollars from discriminating against health plans based on their decision not to offer abortions.
11. With Roe and Casey overturned, Congress cannot argue that abortion is a Constitutional right. But it can use the “spending clause” to condition funding in an abortion context. See South Dakota v. Dole 483 U.S. 203 (1987) for the limits of Congress’ spending power.
Congress also has broad authority under its taxing power. So Congress, and pro-life members therein, should consider further expansion of the Child Tax Credit as well as an increase (and reforms) to the Adoption Tax Credit to help lower the cost of adoption-related expenses in the United States. As I previously stated, it’s unlikely Congress can (or should) use the Commerce Clause to directly prohibit or regulate abortion, but that doesn’t mean Congress can’t regulate other aspects of interstate commerce, including passing legislation that prohibits the interstate transportation of abortion-inducing drugs as well as prohibiting the U.S. Postal Service from transporting such drugs in the mail. Indeed, pro-life representatives should look for creative and constitutional ways to employ already existing regulations to protect life.
At the same time, members of Congress should immediately introduce a Constitutional Amendment that prohibits abortion in the United States. In conjunction with our work at the state and federal levels and with the opportunity to engage with and sway our neighbors and advocate for changes at the State level, we hope and pray that one day we can shift the public consensus to support the passage of a Constitutional Amendment to fully protect the lives of unborn human beings. To that end, we should not stop until laws and lawmakers write legislation that protects life and ends abortion.
This January will be the first “March for Life” in a post-Roe world. And as my family and I marched again this year, we celebrated and gave thanks to God. But as we saw the steps of the Supreme Court once again, we were also mindful that the Supreme Court’s decision is not the end of our fight, but the beginning of our efforts. We must keep taking the biblical truth of human dignity and value to our neighborhoods and to our state capitals while partnering together with Christians and churches across the nation to continue the ongoing fight to end abortion.