". . . and having done all . . . stand firm." Eph. 6:13


Federalism for Life: Legislating Morality in a Post-Roe America

June 26, 2023

Just days before Americans celebrated the anniversary of the fall of Roe v. Wade, Family Research Council hosted a Townhall event asking if there was, in the words of Family Research Council President Tony Perkins, “a need and a responsibility for a federal role to protect the unborn in post-Roe America.” The resounding answer from participating panelists was, “Yes.”

Senator Lindsey Graham (R-S.C.) took a particularly strong stance on the subject, arguing against the increasingly-common Republican position that abortion is a states’ rights issue. Looking to the Supreme Court’s Dobbs ruling for guidance, Graham declared, “Federalism doesn’t dictate barbaric outcomes. … So this idea that the states are the only game in town is wrong. There is not a ‘closed for business’ sign out in front of the House and the Senate when it comes to the unborn.”

Graham is right: The insistence that abortion is a states’ rights issue only is not a conservative position, it’s a clumsy lawyer’s-dodge that cowardly Republicans think they can rely on to avoid alienating progressive-leaning potential voters. But the fact remains that abortion is not circumscribed only to state legislatures, and if Republicans don’t enact robust pro-life legislation on a nationwide scale, Democrats will enact federal legislation furthering the culture of death.

In the court’s majority opinion on Dobbs last year, Justice Samuel Alito wrote, “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” At no point does Alito bar the federal government from making a decision on abortion; on the contrary, he writes, on behalf of the court, “we thus return the power to weigh those arguments to the people and their elected representatives.” He doesn’t return that power to “the states only,” he explicitly enumerates elected representatives but does not restrict them to the state level.

President Abraham Lincoln famously ignited the American Civil War by abolishing slavery — first with the Emancipation Proclamation, which he buttressed with the 13th Amendment to the Constitution — in no small part because it had become obvious that slavery is immoral. Lincoln used federal power — including both his own office, to which he had been elected, and the offices of congressmen, to which they too had been elected — to legislate morality. This was not the first time morality had been legislated, nor would it be the last.

In fact, Alito denotes in his Dobbs opinion numerous instances throughout not just American but Western history in which morality had been legislated specifically regarding abortion. From the 14th century lawyer Henry de Bracton all the way to state laws in place on the eve of the Roe ruling, abortion has long been considered murder. How is it that late medieval peasants and musket-wielding farmers of the Georgian era knew that there was a child growing in the womb, but those equipped today with the technology to analyze that unborn baby’s DNA and listen to his heartbeat still refuse to legislate fiercely on the issue?

Morality is not determined by geography. As Graham pointed out during the Townhall, “This is a human rights issue. Does it really matter where you’re conceived? If you’re conceived in New York or California, you name the place. … Folks, this is a human rights issue. It’s not geography.” Life doesn’t begin at an earlier stage in Texas than it does in New Jersey, and America’s laws should reflect that fact. This is not, of course, to say that state legislators play no role in protecting the unborn — on the contrary, every legislator of every state has a God-given duty to defend the lives of the innocent unborn, not enact or permit the barbarous practice of abortion. But that tremendous responsibility is also thrust upon the shoulders of federal legislators, who now have an opportunity singularly unique in modern times to fight for that most basic and fundamental of rights, the right to life.

As another election draws near, the abortion issue should serve as a litmus test for any office-seeker on the Republican ticket. “I’m here to tell my fellow Republicans, you should want to talk about abortion, not be afraid of it,” Graham emphasized. Any Republican candidate or nominee for any federal office who defers the abortion issue to “states’ rights” is seeking an office and a title only, not the good of the American people. Such shirking of this solemn duty is the mark of the coward.

Nor does such shirking do any good in an attempt to curry favor with progressives. Leftists have demonstrated time and time again — from abortion to the LGBT agenda and the systematic sexual grooming of children, from Marxist movements to “diversity, equity, and inclusion” programs — that they do not appreciate moderates. Leftists routinely demonize Republicans as “Nazis” for espousing such commonsensical positions as not exposing children to porn in schools. The idea that a “soft” stance on abortion would curry favor with those clamoring for the unrestricted dismembering of unborn babies is absurd. It also begs the question, “Why would you want to appeal to such a crowd?”

There’s the additional fact that, while many Republicans seem reticent to touch the abortion issue while campaigning for federal office, Democrats are baying for babies’ blood — loudly. Former Speaker of the House and longtime pro-abortion fanatic Nancy Pelosi (D-Calif.) recently urged her fellow Democrats to make abortion a centerpiece in their campaigns. Pro-abortion extremist Senator Chuck Schumer (D-N.Y.) vowed Democrats will “never, never stop fighting” for abortion. Ahead of the Dobbs anniversary, First Lady Jill Biden condemned the Supreme Court decision and once again erroneously equated abortion to health care. Pro-abortion group Emily’s List is pouring over $10 million into Vice President Kamala Harris’s reelection campaign. And as The Washington Stand reported this week, the White House phoned abortionists to “thank them for their work …”

The Dobbs decision which undid Roe was, undoubtedly, a substantial pro-life victory — probably the most substantial since the 1973 Roe decision itself — but though that battle may be won, the war is far from over. As Marjorie Dannenfelser, president of Susan B. Anthony Pro-Life America, noted during FRC’s Townhall, “After 50 years of blood, sweat, tears, prayers, 63 million children dying, you don’t get to the starting line and say, ‘I’m done.’”

The Dobbs ruling has left a vacuum, one which pro-death Democrats are racing to fill with their lethal legislation. Republicans need to be just as eager and far more vigorous in filling that vacuum with meaningful pro-life legislation. If not, the fall of Roe may mark only the birth of an explicated constitutional “right” to abortion, and another 63 million babies or more will be slaughtered.

S.A. McCarthy serves as a news writer at The Washington Stand.