Political commentary on the 2022 midterm elections in much of the establishment media has coalesced into a mantra that support for abortion rights was a big winner for Democrats, even the main cause of the anticipated “red wave” not materializing. Correlatively, this commentary sees the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization as a big loser for Republicans and their pro-life supporters. This commentary misreads both the root causes of the apparent victories for abortion rights and the meaning of Dobbs itself.

While a relative uptick in pro-abortion voter engagement could be expected in reaction to Dobbs, the dominant narrative errs in seeing this as evidence of a permanent majority for unrestricted abortion access. A more plausible, and more direct, driver of the admittedly good election cycle for abortion rights can be found in the fact that the Democratic Party and their pro-abortion allies unleashed an unprecedented political and marketing offensive ahead of the midterms to drive opinion, one that was unmatched by any even remotely comparable effort on the Republican side in favor of life. Moreover, the Republican “pro-life” position had become in many cases reduced to little more than an attack on Roe v. Wade as bad constitutional law, illegitimately taking the issue of abortion out of the democratic process. While this was undoubtedly a valid attack, excessive reliance on this argument, and reticence or inability to talk effectively about the moral evil of abortion, left many political campaigns ill-prepared for the victory represented by the overruling of Roe. The good news for the pro-life community is that these elections do not have to portend the future that the commentariat would suggest. They rather show that Democrats were very effective at doing two things in the July through November time frame: (1) quickly mobilizing a powerful public relations blitz on abortion, far outspending and out-strategizing Republicans on the issue, and (2) miscasting Dobbs as dangerous judicial activism (rather than the correction of dangerous judicial activism that it was). There is nothing permanent or persuasive about these victories. They do, however, offer a couple of very important lessons for the pro-life side that should be internalized and acted on for the struggle ahead.

I: The Pro-Life Community Must Focus Its Alliances on Politicians Willing and Able to Articulate the Moral Evil of Abortion (Not Just the Judicial Usurpation of Roe)

For fifty years there has been a wonderful marriage of convenience between the pro-life movement and jurisprudential conservatives. When a huge constitutional monstrosity like Roe both usurps the democratic legislative process and produces the substantive result of unrestricted abortion access, it is natural and fitting that pro-life advocates and jurisprudential conservatives would unite against a common enemy. Anyone who sees abortion as the taking of innocent human life, yet is prevented from achieving any true measure of legislative protection for this life because of Roe’s judicial usurpation, will understandably sign on to the judicial conservative’s project, grounded in originalism, of restoring the proper judicial deference to the legislative sphere by repudiating Roe. Without achieving Roe’s demise, after all, any political advocacy on behalf of the unborn would be in vain. There are, to be sure, many simultaneous adherents of both camps. However, it must be understood that Roe can be opposed because it is bad constitutional law, and it can be opposed because it leads to an evil result, and these are two different bases. Many may have opposed Roe on both bases, but many may have opposed Roe more, maybe much more, on one rather than the other.

This is where one lesson of the 2022 midterm elections becomes apparent. One side of the marriage of convenience opposed Roe primarily as the bad constitutional law it was. In this view, Roe, like other judicial decisions departing from originalism in areas such as recognizing a vast federal administrative state, failing to police any federalism limits to Congressional intrusions on state authority, and creating other speculative constitutional rights under the concept of “substantive due process,” is wrong jurisprudentially. The solution to that problem, in the case of Roe, is simply to return the decision on abortion to the place where it belongs in our constitutional democracy: the people through their elected representatives. Indeed Dobbs, as we shall see below, makes this case eloquently. Once that is done, the goal of those motivated mainly by jurisprudential correctness, viz. originalism, is achieved.

For the pro-life side of the marriage, however, returning the abortion question to the people is only the first step in achieving the solution to the most fundamental problem of Roe, which is not one of jurisprudential propriety, but one of facilitating a substantively grave moral evil. Here, though, their erstwhile marriage partner was not found to be investing in the relationship. With the noble exceptions of some Republican governors who strongly defended pro-life legislation they had passed, the party strategists decided that the winning issues worthy of big media expenditures in this past election did not include defending the cause of life, but rather emphasized inflation (above all), crime, and immigration. Meanwhile, Democratic strategists, recognizing the opportunity presented by Dobbs to mobilize their base so soon before the election, deemed it worth spending a huge percentage of their media budgets on attacking Dobbs and supporting pro-abortion candidates and referenda.

What transpired was the most unlevel playing field imaginable for the prolife position in the elections. It is estimated that Republicans and Democrats spent about $10 billion in political advertising in the midterm elections, more than in the 2020 presidential election, and triple the spending in the last midterms in 2018. Yet within these overall figures is a key story: Democrats went all in on abortion, spending by some estimates twenty times more on abortion advertising than they spent on abortion in the 2018 midterms.* By contrast, Republicans focused their advertising spending overwhelmingly on inflation, with a secondary but strong focus on taxes, crime, and immigration—but almost nothing on abortion. Now, it turns out that $10 billion buys some slick and effective persuasion. And would you believe it: According to exit polls, the two issues that were most salient in voters’ decisions were inflation and abortion. Given these immense but very differently focused campaigns, moreover, it should be shocking to almost no one that those who were most concerned about inflation tended to favor the Republican side, whereas those who were most concerned about abortion tended to favor the Democratic side, in both cases by about 2-to-1.

There was much triumphalist crowing from the pro-abortion commentariat that abortion restrictions could not withstand exposure to democracy. That triumphalism will prove premature if the right lessons are learned from the election. First, what was most clearly shown was that what abortion restrictions (or any political cause) cannot easily withstand is exposure to $5 billion in unanswered media attacks. Second, courageous political leaders—think Governors Abbot of Texas, DeSantis of Florida, DeWine of Ohio, Kemp of Georgia—could sign and strongly defend pro-life legislation and still win with comfortable margins. Third, many Republicans allowed pro-life positions to be inaccurately tarred as extremist, as defending imaginary abortion bans with no exception for life of the mother. At the same time, more keen to change the subject to inflation, crime, immigration, or almost anything else, these Republicans (again, with noble exceptions, like Senator Rubio of Florida) gave a free pass to the more truly extreme position of pro-abortion Democrats. These latter seem unwilling to defend any restriction on any kind of abortion at any stage, as they gather around the banner of “Abortion: On Demand, Without Apology,” a position that all credible polling suggests is held by a minority of voters. Lesson number one of this election is that Democratic success on abortion was made possible in large part by Republican decisions in effect to concede the field and focus on other issues.

Internalizing this lesson, what might pro-life strategists pursue as next steps? First, a healthy dose of realism is required with respect to the marriage of convenience that has prevailed for the last 50 years. Some, hopefully most, of those committed to the righting of the wrong of Roe base their position, at least in part, on the need to avoid the evil result of unrestricted abortion. But there will be some anti-Roe partisans, viewing Roe primarily or even solely as a jurisprudential offense, who will likely choose this moment to part ways. It is not irrational, or even necessarily in bad faith, for them to do so. As I will discuss in more depth below, even Justice Alito’s opinion in Dobbs notes that many scholars who criticized Roe as bad constitutional law did so while supporting abortion as a matter of policy. People sharing that view can be expected, once Roe has been overruled, to deem the offense “resolved” and to be agnostic about, or even supportive of, abortion rights, so long as they are grounded in legislation adopted through the democratic process rather than by federal judicial fiat.

Second, this realism points to the need for redoubling of the long, valiant, and to a great degree successful and promising effort to educate society, particularly the young, about the moral evil of abortion. But that realism also requires a recognition that the struggle to come will be even more challenging than what we have undergone thus far. This is because the pro-abortion side, for these last five decades, has been fighting in a sense with less sense of urgency, knowing that the federal judiciary had their finger on the scales. Convincing the legislators, and ultimately the public, was less existential an exercise for those supporting the free abortion license when there was little constitutional scope for legislative action. Now, the very success of the prolife movement in the first phase of its struggle, discarding Roe, has set up a battle for the ultimate goal that will drive the pro-abortion forces to unleash all the tools and financial resources at their disposal. This is exactly the dynamic of which the 2022 midterms have given us a foretaste.

Yet, third, this new struggle is hardly one that the pro-life side sets out on unprepared or ill-equipped. The strong witness for life, the marches, the arguments, the engagement with students, the very youth of the pro-life movement are all assets. Elections, though, will remain important tests. Winning elections will be important not only to maintain credibility and impact on the public debate, but also to parry the likely legislative assaults, such as attempts to “codify Roe” and to move proactively to protect unborn life in the many states where whatever protections exist are in the process of being ripped down. One need only look at California, Vermont, and, more disappointingly, Michigan, to see the political enormity of the task ahead.

In this past election, we saw a one-sided lavishly funded propaganda blitz in favor of abortion, focusing disingenuously on the most difficult and rare pregnancies and most tragic situations of rape and child abuse, as if to obfuscate what the candidates this propaganda supports will actually do: vote for laws recognizing virtually no limits to any kind to abortion, fail to protect even babies born alive, moving the United States, in other words, to an extreme pro-abortion position well beyond what prevails in most comparable democracies. Now imagine a future election where, instead of trying to change the subject, we see political parties that care about life putting significant resources into advertising and education efforts that detail the real extremism of most Democratic politicians by explaining which abortions they would allow: late-term abortions, sex-selective abortions, abortions for any reason or none. As importantly, imagine an election where, with all due thanks for the past alliances that brought about the needed demise of Roe, new alliances are struck up by pro-life forces. These new alliances could include many with progressive groups who may be brought to recognize the strong alignment of the pro-life position with those defending the rights of the disabled, of immigrants, and of workers and opposing the excesses of materialist consumerism. Even the loss of some of our originalist conservative allies could be made up by new allies drawn by a shared respect for the needs of the vulnerable, including, most immediately, the needs of women in difficult pregnancies. Credible proposals to support women in crisis pregnancies and to hold fathers accountable must also be a part of this political program.

Seeing and acting on the full spectrum of moral evils posed by abortion and the culture that supports it, and articulating with conviction a multifaceted, moral political response to these evils, is the first way to learn the lessons of 2022 and make the pro-life position a winner.

II: Dobbs Was Rightly Decided; Defend It and Leverage It

All that has been said so far on the precedence of the moral over the jurisprudential harms of the abortion regime by no means undercuts the significant victory Dobbs represents. Moreover, while Dobbs goes more to constitutional process than to moral substance, there are important aspects of it that must be defended and more broadly understood to make the political struggle for unborn life more winnable. Put negatively, while achieving the outcome in Dobbs does not ensure victory for life, losing Dobbs would make the victory almost impossible, for two distinct reasons. First, as the last 50 years have shown, the legal effect of Roe was to enjoin any legislative protection of life as a practical matter. Second, more subtly but as crucially, Roe also represented a symbolically powerful if deeply flawed talisman—that abortion is a constitutional right, and indeed one critical to women’s equality. In our constitutional democracy, the enshrinement of any policy as a constitutional right is a potent support—legally, but also socially and culturally. The First Amendment has rightly protected unpopular speech and unpopular religions, not only legally but socially, making people more willing to tolerate opposing and diverse views. On balance, these constitutional values of our society, beyond the purely legal mandates they reflect, are good things. Of course, some constitutional values are of more debatable merit. Whether the nation should have the degree of laxity in its regulation of firearms that currently obtains is heavily contested. What seems uncontestable, however, is that the pro-gun position would have considerably less strength, not only legally, but in terms of social acceptability, if its adherents could not point to the Second Amendment as an enshrinement of gun ownership rights. One can debate the objective moral strength of various claims of right embedded in different provisions of our Constitution; the simple contention here is that for the last fifty years, the ability of pro-abortion partisans to point to Roe, and claim that abortion is a constitutional right, has immensely aided and abetted their political and cultural messaging. Roe and its proponents in effect adopt the view, a view that would be risible were it not so destructive, that fundamental due process rights, the equal position of women in society, and other unenumerated rights somehow combine to require the state to permit unborn human life to be killed with impunity. This view holds that the due process enshrined in the Fourteenth Amendment, passed to combat the evils of racist and lawless oppression after the Civil War, prevents American democracy from protecting unborn human life to the degree done in numerous other constitutional democracies. The thorough repudiation of this errant view of Roe is a necessity culturally as well as politically for the attainment of a truly pro-life society. That is what Dobbs accomplished, and that is why Dobbs must be defended, explained, and leveraged. In what follows I lay out the main lines of criticism of Dobbs.

Dobb’s opponents can generally be categorized into two groups: the hyperbolic but expected attacks from the pro-abortion political and media commentariat, and the more nuanced yet still hard-hitting critiques of legal scholars.

The first group can be dispatched without wasting much time. Dobbs was met quickly with expected denunciations from Democrats in Congress and the White House, and perhaps a little less expectedly from leaders of some other democracies. The spectacle of President Macron of France tweeting his “solidarity with the women whose liberties are being undermined by the Supreme Court of the United States” was noteworthy mostly for his ignoring the fact that France has stricter limits on abortion (at 14 weeks) than the Mississippi law upheld in Dobbs. Numerous politicians, foreign and domestic, railed against the Court “banning” abortion, while of course it did no such thing. The decision by Justice Alito was equated with fascism, absolutism, fundamentalism, and worst of all, judicial activism, all bold claims (to say the least) about a decision that properly restored to the People a difficult decision about which the Constitution says nothing.

One critique advanced by (among others) Linda Greenhouse, a long-time Supreme Court commentator who should have known better, even charged Dobbs with being a theologically grounded decision, ostensibly just because the majority opined that the question of what is human life, and the state interest at issue in protecting human life, is intrinsically more important than interests in related areas like contraception and same-sex marriage. But of course the government gives unique importance to human life, and what may or may not harm or destroy it, all the time. In many areas, government recognizes that whether a given action risks taking human life is a supremely important question.  For the Court then to allow legislatures to consider whether abortion poses this risk of taking a human life is no more “theological” than myriad other examples where government acts to treat even remote chances of taking human life as outweighing other interests. Acknowledging that whether abortion is or isn’t taking a human life is a supremely important question and no more “theological” than myriad other examples where government acts to treat even remote chances of taking human life as outweighing other interests. And the fact that destroying a fetus is at least potentially destroying a human life, in a way that most (but not all) contraception or allowing same-sex marriage is not, is a biological and scientific as much as a theological conclusion, unless Greenhouse wants to argue that a fetus is a polyp or a tree. Moreover, while legislative actions to adopt one theory of human life may or may not be partly “theologically” based (and when they are, that is fine, as moral considerations, even ones theologically based, may motivate a legislator to vote for welfare, for or against the death penalty, for civil rights law, etc.), it is entirely a matter of originalist jurisprudence, and not of religious doctrine, for the Court to say that in our constitutional system, it is the job of the representative branches to decide those important questions. Perhaps the final irony of this bizarre view worth mentioning is that it was Justice Blackmun, in Roe itself, who said that whether a fetus is a human being is a supremely important question, because if in fact a fetus is a human being, then abortion would not only be constitutionally proscribable, but would be constitutionally prohibited! (On this, more below.) Alas, Justice Blackmun went on to say that Texas could not ban abortion by adopting “one theory of human life,” before blithely going on to adopt a contrary theory himself in order to constitutionally enshrine abortion. Justice Alito’s main sin according to Greenhouse and others, it seems, is that he had more epistemological humility than Justice Blackmun. Irony indeed.

The second, and by far more serious group of critics of Dobbs, are those legal scholars who, even if admitting the weaknesses of Roe’s ersatz approach, unmoored in the text or actual history of the Constitution, nonetheless find the complete rejection of any right to abortion in the Constitution as too radical a break with the nearly 60-year substantive due process line of cases from Griswold v. Connecticut. While not necessarily embracing all parts of Roe, or even its successor Planned Parenthood of Southeastern Pennsylvania v. Casey, which slightly limited Roe in adopting the slightly more deferential but still ersatz “undue burden” standard, these critics view the complete jettisoning of Roe by Justice Alito’s opinion as inconsistent with rights to personal autonomy, and particularly with the role of women in modern society. These critics implicitly read the holding of Roe more through the Equal Protection prism that Justice Ginsburg, among others, thought would have been a more solid basis for the right to abortion than the Due Process basis.

While several such critiques have been written since Dobbs was issued, the best lines of argument are included in, and we shall focus on, the dissent in Dobbs itself. The dissent of Justices Breyer, Sotomayor, and Kagan in Dobbs must be credited as a valiant effort. Faced with the impossibility of defending Roe on its own terms, it focuses its considerable rhetorical power on attacking what it urges are the flawed bases for the majority’s takedown of Roe: a crimped reading of constitutional liberty interests that hews obsessively to what was thought of abortion in 1868, or 1791, or even earlier; a callous rejection that there is “anything of constitutional significance attached to a woman’s control of her own body and path of life”; and, lest anyone think it can’t get much worse, a cavalier departure from stare decisis that leaves other cherished rights, undergirding or flowing from Roe, now vulnerable to evisceration. Close reflection shows, however, that the dissent’s compelling rhetorical flourishes on these points mask a failure to engage with the majority’s accurate dissection of Roe’s own fatal flaws.

Part II of this article will appear in the Summer 2023 issue.

*See, “Republicans and Democrats are spending billions on ads—with very different messages,” the Guardian, Nov. 3, 2022, available at https://www.theguardian.com/us-news/2022/nov/03/ republicans-democrats-political-ads-us-midterms

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Original Bio:

Thomas Clark is a lawyer and contributor to the Human Life Review, with over 30 years’ experience in public policy and legal affairs.