Pro-lifers may be depressed in the wake of the 2023 off-year legislative elections.
The worst defeat was Ohio: Enacting a state constitutional amendment enshrining abortion-on-demand through birth profoundly changes the pro-life dynamics of the state, barring the legislature from protecting life even if it wanted to.
It’s going to take a while before pro-lifers can muster the numbers to attempt repeal of such amendments, but that must be our long-term goal: Constitutions (and judicial interpretations of constitutions, as we saw in Roe v. Wade) set the long-term direction of the law, for good or evil. They shape the rest of legal, policy, and social expectations. Pro-abortionists know this; that’s why they’re playing for keeps.
While the outcomes of 2023 are depressing, they should elicit resolve rather than despair. 2024 requires all pro-life hands on deck. It is the first presidential election since Dobbs v. Jackson Women’s Health Organization. The likely Biden-Harris ticket will campaign on its utter fealty to abortion, something the president and vice president might hope deflects from their economic, crime, and social policy. Getting multiple pro-abortion referenda on state ballots will help their cause, bringing in pro-abortion voters likely to pull the Biden lever.
Retaining a pro-life House and getting a pro-life majority in the Senate will get pro-lifers only so far, even if Republicans recapture the White House. It’s essential that pro-lifers learn the realities of political dynamics and stop their “Jefferson Smith” approach to politics.
In Frank Capra’s “Mr. Smith Goes to Washington,” fictional Sen. Jefferson Smith, head of the Boy Rangers, is appointed to a Senate seat where he is ensnared in the dirty politics of his state’s senior senator. In the film, right triumphs: Smith is acquitted, his hidden foil Sen. Joseph Paine exposed, and all is right in the world.
Politics is not a Frank Capra film.
Capturing a pro-life majority in the Senate will certainly help in ensuring support for a pro-life president’s policies (or helping block a pro-abortion one’s) and putting through pro-life appointments, including judges. But most legislative business in the Senate can be filibustered, which requires 60 votes to shut down, and — at least at this moment — it is unlikely the 2024 elections will produce that kind of supermajority pro-lifers need.
They also need to be wiser about politics. A pro-abortion governor in Kentucky is no major barrier to pro-life legislation if pro-lifers control a supermajority of the legislature. But pro-abortionists don’t need to win back the legislature to control the agenda. All they need is to gain enough seats in one house to sustain gubernatorial vetoes, and pro-abortion groups have already said they will be pouring money into states where that can happen.
Conversely, flip only one house of the state legislature (or two, as in Virginia), and a pro-life governor can be stymied. And, in states where the (usually Democratic) political machine is aggrieved by the outcome of reapportionment, don’t fail to pay attention to how courts — state or federal — might shift electoral maps to pro-abortion advantage. Finally, in states where judges are elected, elections that generally attract only the partisan and those with an agenda, it doesn’t take a lot of votes to flip a court.
Pro-abortionists are doing what some in the right-to-life movement dissuaded us from pursuing in the wake of Roe v. Wade: constitutional amendments. A pro-life majority in either or both houses of Congress will allow blockage of any “codifying” of Roe. Proclaiming the ratification of the 45-year dead Equal Rights Amendment would likely be tied up in the courts. But pursuing initiative and referendum-driven state constitutional amendments, as in Michigan in 2022 and Ohio in 2023, is tempting.
For one, most initiative and referendum amendments can be adopted by a simple majority: one more “yea” than “nay.” Pro-abortion states such as Minnesota might be counted on to enact abortion-on-demand amendments by traditional means, but the Ohio example suggests that pro-abortionists “lock in” commitment to abortion through state referenda in pro-life states, with places such as Arizona, Florida, Nebraska, and South Dakota likely to be on their radar in 2024.
Pro-abortion amendments might also be seen as helping Democrats on the national ticket in toss-up states such as Arizona and Florida, so expect a firehose of out-of-state, special interest money to pursue such efforts. The time to start educating people is now. The time to start working in pro-life legislatures on electoral integrity — limits on out-of-state money, campaign disclosure, protection for electoral boards to frame questions, requiring supermajorities to amend a state’s basic law — is also now.
That’s especially important because, in the “No Jefferson Smith Approaches to Politics” school, pro-lifers need to realize that abortion debates are usually not so much about policy specifics as weaving a story, seizing a narrative, or grabbing an extreme case and using it as a cudgel to smuggle abortion-on-demand in behind it. Our state right-to-life muscles have, in many cases, atrophied following almost 50 years of the federalization of abortion under Roe. It’s time to do some major physical training!