Some Republicans Struggle to Rally around a Pro-Life Strategy in Congress

While there were once many in Congress dedicated to federal protections for the unborn, Family Research Council President Tony Perkins recently expressed concern that a growing number of Republicans in D.C. seem content to move the fight to the state level now that the Supreme Court has struck down Roe v. Wade.

“With the Dobbs decision overturning Roe v. Wade last summer,” Perkins said, “the Supreme Court returned the issue of abortion to policymakers from whom they seized the issue nearly 50 years ago.” In doing so, the FRC president said, “The court has also opened the door for federal legislation to protect unborn babies.”

On “Washington Watch” last week, Perkins expressed frustration that many Republicans in Washington, D.C. are punting any action on the sanctity of human life issue to the states. 

“It’s not like this [action] is just for the states,” he stressed. “But some pro-life national legislators have raised concerns that any federal legislation that might be passed [like Senator Lindsey Graham’s 15-week limit on abortion] would pose legal challenges for stronger legislation at the state level.” Graham’s bill, Protecting Pain-Capable Unborn Children from Late-Term Abortions Act, would protect unborn children in the second and third trimesters, while providing exceptions for cases of rape, incest, or if the mother’s life is at risk. A companion bill, H.R. 1080, was introduced in the House by Rep. Chris Smith (R-N.J.).

Graham indicated his position was not extreme, saying the bill would “put the United States abortion policy in line with other developed nations such as France, Germany, Belgium, Denmark, Spain, and other European nations.”

At a press conference following the bill’s filing, Graham said he acted after Democrats introduced legislation to codify Roe v. Wade, which allowed abortion through all nine months of pregnancy. In overturning the 1973 ruling, the Supreme Court majority held the “Constitution does not confer a right to abortion.”

Graham’s bill notes that an unborn child first moves about in the womb and first reacts to touch at approximately eight weeks gestation, and at 12 weeks gestation, an unborn child starts to make sucking motions and senses stimulation from the world outside the womb. At this age of life, the baby’s fingernails and fingerprints — which are unique to each human being — begin to form.

It didn’t take long for members of Graham’s own party to push back on the idea of congressional action on the life issue. Soon after the bill was introduced, Senate Minority Leader Mitch McConnell (R-Ky.) told reporters: “I think most of the members of my conference prefer that this be dealt with at the state level.” Senator Shelley Moore Capito (R-W.Va.) agreed, saying, “I don’t think there’s much of an appetite to go that direction.” Capito noted her state’s legislature was addressing the abortion issue.

The GOP headed into the 2022 midterm elections with hopes of a “Red Wave” that would sweep in a sizable Republican majority to Congress. That rapidly subsided, and some Republican strategists in part blamed the Dobbs decision and an intense Democratic messaging campaign to make the “threat to women’s reproductive rights” the main issue in the election. In a move that surprised many conservatives, some Republican candidates suddenly developed cold feet on an issue they had aggressively pushed in campaigns over the last few decades.

For years, the Republican Party has included the right to life issue as a major plank in their party platforms in presidential elections, Perkins recalled, lamenting the shift to make restrictions on abortion only a state issue.

While an April 2023 NPR/PBS NewsHour/Marist National Poll suggests 59% of respondents opposed the Supreme Court’s overruling of Roe v. Wade, 66% said abortion should only be allowed, at most, within the first three months during pregnancy. In what might be the most tragic finding of the poll for those who hold to the sanctity of all human life, more than six in 10 Americans (61%) said they personally know someone who has had an abortion.

Expressing concern about the rhetoric he’s hearing in Washington, D.C. from “some of our conservative friends who are pro-life,” Perkins said, “I don’t question their pro-life credentials, but all of a sudden they’ve lost their fight for this issue.”

He said many on the right in Congress who had been fierce proponents of bills banning abortion after 20 weeks of life are insisting now it’s a state issue. “It’s just not adding up for me,” he said.

“There’s a role both for state lawmakers and for federal lawmakers,” attorney Ken Klukowski said, agreeing with Perkins on “Washington Watch” last week.

“All of them are answerable to the voters when it comes to the issue of abortion,” Klukowski insisted, adding, “And the Supreme Court’s decision in Dobbs is perfectly consistent with that.” Klukowski is a former senior counsel in the Civil Rights Division of the U.S. Department of Justice and served in the White House Office of Management and Budget in the Trump administration.

He said the Supreme Court ruling does not limit the federal government from addressing the abortion issue.

“Justice [Samuel] Alito, writing for the court, said that they were turning the matter over to elected lawmakers, people who would answer to the voters,” Klukowski pointed out. “That could be your state senator or it could be one of your two U.S. senators in Washington, D.C.”

The ruling reads in part: “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. The Court overrules those decisions and returns that authority to the people and their elected representatives.”

Elsewhere in the decision, the court’s majority urges: “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”

Klukowski said there are many instances in society where both federal laws and state laws overlap and serve the greater good. It’s time, Perkins insisted, for Republicans to step up and embrace the job the court finally returned to them.