The Conservative Legal Movement at the Edge of Schism

Last month in Public Discourse, Josh Craddock “called the question”: if Roe v.Wade is overturned, or seriously scaled back by the Supreme Court in June, are we prepared for what comes next? That question has been put to us with even more sharpness in recent weeks in the reaction to the leaked opinion of Justice Alito in the Dobbs case. And what it brings home to us is that the issue raised anew by Craddock will set off deep and perhaps even explosive differences among conservatives on the day after Roe is overturned.

The position long established in “conservative jurisprudence” is that the issue of abortion is then returned to the political arena in the states. The argument has been that since abortion is nowhere mentioned in the Constitution, it forms no part of the business of the national government. To entrench this view further, the issue is returned to the states because, it is said, we are too divided on whether that nascent being in the womb is truly a human life, which comes rightly under the protection of the law. As one of our leading conservative justices put it, there is “no way to determine that as a legal matter . . . the fetus and what others call the unborn child is a human life.” That question hinges, he said, on a “value judgment” made by people in the states on how much value they attach to the offspring in the womb as a human being.

In contrast, it would make a profound difference if the Court says, rather, that the laws would be amply justified in casting their protection about that nascent human life in the womb, for that small being has never been anything less than human from its first moments, and never merely a part of the pregnant woman. If the Court sent the matter back to the political arena in that way, it would also frame the issue for the states in a strikingly different way. It would no longer be a matter of offering value judgments on whether the unborn child is a human being. But at the same time, the ground would be put in place for engaging the powers of the federal government when we find the states withdrawing the protections of the law from a whole class of human beings.

Craddock’s Plan

In his recent essay, Craddock argues that, with the overruling of Roe, legislators would be free, throughout the country, to restore their laws on abortion, with a sharpened recognition of the personhood, or the human standing, of the child in the womb. In addition, there could be a move to restrict the intervention of the federal courts, and possibly even establish a private right of action in enforcing these policies.

Craddock has renewed, in a gifted way, the argument that some of us have been laboring to make for­­­ forty years, beginning with Stephen Galebach’s impressive long essays as the lead to the Human Life Bill in 1981. Galebach, newly sprung from Harvard, made the case for the rightful authority of the Congress to act through the Fourteenth Amendment to protect those small humans marked for abortion. There was a strong effort to enact the Human Life Act, and Craddock has made the case anew for some of the defining features of that bill.

Most notable was the move to invoke, as a precedent, the Norris-LaGuardia Act of 1932. That Act sought to restrain federal judges from intervening too quickly in labor disputes, making ready use of injunctions to quash strikes. What the Human Life Bill sought to do was restrain federal judges from intervening too quickly to strike down pro-life legislation in the states. The cases would be allowed to work their way through the state courts before they could be taken to a federal court of appeals.

Craddock’s plan draws also on that feature contained in the recent legislation in Texas: private persons would be given the standing to launch suits to protect the child in the womb. That feature, in one form or another, may turn out to be central to any bill that Congress may pass in the aftermath of the Dobbs case this year. But just why that would be true depends on an approach rather more tempered—and disarming—than the high-charged bill that Craddock lays out.

Reflecting on Craddock’s Plan

Everything Craddock sets forth is apt, but in the immediate aftermath of the decision of the Court in June, the kind of initiative he brings forth is likely, as we used to say, to “scare the horses.” Even a large block of conservative lawyers and jurists may be found quite dug in, resisting any such move to engage the Congress in any active exertion of its powers to protect that “human person” in the womb. People may not recall that, when Galebach made his strong case for the authority of Congress here, one of his notable opponents on this matter was Robert Bork. My own hunch is that Bork would have changed his mind by this point, and yet the ground of opposition is still firmly planted in the reigning doctrines of conservative jurisprudence.

As we pick up the pieces, then, in the aftermath of the decision in Dobbs, we might find a large hunk of conservative lawyers and politicians having no yen to take the pro-life movement into another gear by engaging the national government more actively on this side. Many of them still think that, with a decision to sweep away Roe, they would be delivered from the need to keep talking any longer on this subject. But this state of affairs could actually be useful for concentrating our own minds. There may be all the more reason to follow Andrew Jackson’s order at the Battle of New Orleans, where he reportedly said, “Boys, I want you to elevate them guns a little lower.” There is a moment here, in high prudence, to focus on those simple first steps that would convey to the public just why there is the need, in the first place, for Congress to act at all.

When the pro-lifers have marched in Washington, they haven’t been carrying signs marking, as their chief complaint, that the Court has exceeded the limits of its jurisdiction. The burning concern has been with the killing of babies in the womb. No one thinks the purpose of those marches will have been accomplished when the matter is simply sent back to the states. For we know that in states like New York and California, the killing will charge ahead on a massive scale, with any lingering limits on abortion swept away.

But the question put back in the states would be strikingly recast if the Court sends it back with a strong reminder that we are dealing here with the killing of small beings who have never been, at any stage, anything less than the human beings they will remain for the rest of their days. The Court then would be inviting the states to consider just how their laws dealing with the taking of small human lives would be reconciled with their other laws on homicide, on the grounds for protecting other human lives. But that would put the decisive predicate into place: the responsibility of the federal government would be inescapably called forth when the protections of law are being withheld from a whole class of human beings, just as they were in the worst days for black people in the deep South.

A Modest First Step

What then might be the clearest first steps that the Congress could take, readily understood by the public—and readily accepted on all sides? The answer would probably be found in the bill we once described as the “most modest first step” in legislating abortion: the bill to protect the child who survives the abortion, the Born-Alive Infants Protection Act of 2002. But now we have the Born-Alive bill redux: the move to restore the penalties, civil and criminal, that had been stripped from that original Act. The newer version, which now features serious penalties, is called the Born-Alive Abortion Survivors Protection Act. That bill has been introduced twice in the House and passed with support from every voting Republican. And it has been opposed now, with rising passion and cohesion, by all but five or six Democrats. The same line-up showed itself in the Senate when the Republicans were in control in 2020: Every Republican voted for the bill, and every Democrat resisted, with the result that the bill could not command the sixty votes needed to overcome the filibuster and get the bill to the floor for a vote.

The fierce, cohesive opposition of the Democrats—their resistance to any measure that casts a moral reproach to abortion or marks even the slightest limits on abortion—tells us that this modest first step has touched a nerve running deep. If we are to choose then a ground on which to join the argument at the national level, this is clearly the ground most favorable to the pro-life side—and the most untenable for the defenders of abortion. On this tilted terrain, the Democrats promise to suffer an erosion even within their own base.

The Susan B. Anthony List has placed the Born-Alive Abortion Survivors Protection Act near the top of its legislative agenda. It would provide the critical toehold for the national government in moving into the states because it would give the government a reason to be inquiring into the work of hospitals and clinics doing late-term abortions. It would also offer the chance to threaten the removal of all federal grants and tax exemptions from any hospital or clinic that housed these killings, for these facilities would now be operating in a matter quite at odds with “public policy.” We would not be dealing here merely with executive orders, but with a statute, and that should be enough to clear any doubts on what “public policy” on this question would be.

But for the same reason, the Born-Alive Act would have the same value as a first step even in blue states like California, New York, and Illinois. For it remains the “most modest” and disarming first step. The move to introduce that modest bill could be enough to stir a wider conversation even in those states, where ordinary folk may be reminded that we are dealing here with the killing of small human beings. But that provides also the legal ground that could bring forth the next phase, the guardians ad litem: those earnest people coming into hospitals and clinics, petitioning to be the guardians to protect the unborn children marked for abortion. That may provide the ground then also for Craddock’s proposal to draw on the new law in Texas: Congress could create a private right of action on the part of any citizen to bring suits against clinics or persons who could be violating this federal law, the Born-Alive Act.

The prospect of these suits on behalf of the unborn, arising in many settings, would offer the chance to many federal judges to weigh in and develop a body of reasoning as the law is tested in these cases. Which is to say, the judges are given the chance to act in that old role of “republican schoolmasters”: As they try to shape the contours of this new law, they would be offering lessons to the public on what is at stake in these killings, so curiously camouflaged in euphemism. We have had a powerful example here in our own time: federal judges in the 1950s and 1960s, dealing with sit-ins by black people in lunch counters, restaurants, and department stores. As the lessons welled up from these cases, the judges were preparing the public understanding that marked the path to the Civil Rights Act of 1964. That kind of judging, case by case, may help to school the public to an acceptance of an enlarging federal role, for Congress and the Executive, in extending the protections of law to children in wombs.

For all of that to begin, of course, we need to await a pro-life, Republican Congress, which may be coming soon. The bill will pass again readily in the House, but the SBA List will have to address the condition of Senator Ben Sasse of Nebraska. Sasse introduced the new Born-Alive Act in the Senate, but then did not persuade his colleagues to get the bill to the floor for a vote. The task for the SBA List is to encourage Sasse to start fulfilling his vocation as a legislator—or to give the bill over to someone else who will.

It may well be that other friends will offer more imaginative and sounder schemes than what I have sketched here in taking those first steps after the Court’s decision in the Dobbs case. In fact, my own James Wilson Institute may arrange a symposium, inviting others to offer their own views on what we may do on the first days after the decision, and I’m sure that we will not be alone in holding those meetings. This kind of symposium may also reveal the serious divisions that may spring forth among conservatives, and grind us down long enough to “lose the name of action.”

But none of this will we know until a beginning is made, and Josh Craddock jolts us with the call to make that beginning.

This article was originally published at Public Discourse, a journal of the Witherspoon Institute, here.

Hadley Arkes is the Founder and Director of the James Wilson Institute as well as the Edward Ney Professor Emeritus of Jurisprudence at Amherst College.
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