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Pro-Lifers Should Hold Off on Seeking National Abortion Ban

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Justice Elena Kagan’s dissent in the Supreme Court’s decision overturning Roe v. Wade gets one thing right: The ruling doesn’t just open the door to states to ban abortion. It removes the key legal obstacle to a federal ban on abortion, too. Whether and how to take advantage of that opening will now become a strategic choice, and debate, for pro-lifers.

For opponents of abortion, there are weighty considerations on both sides.

Let’s start with the case for federal action. The 14th Amendment says that states must extend the equal protection of the laws to all persons and gives Congress the power of enforcement. The pro-life movement has argued that allowing states to deny unborn children protection against homicide breaks that promise. (The Republican platform has long said that the amendment’s protections should apply to the unborn.) Our country has for many decades acted on the conviction that basic human rights require federal protection.

If the federal government does not act, in some states unborn children will have no legal protection against elective abortion. If pro-lifers, by acting at the federal level, can provide legal protection for human beings who otherwise would not have it, they would seem to have a moral obligation to grant it.

On the other hand, we generally leave the prohibition and prosecution of homicide to state governments. We have good reasons for this arrangement, and some extra reasons for adopting it in the case of abortion. Even if we all agreed that abortion should be banned, we would not agree on the details of the laws that would follow from that premise.

Is it enough to take medical licenses away from doctors who perform illegal abortions, and impose steep fines on people who perform them without licenses? Or does justice and deterrence require tougher sanctions? Allowing states to enact different laws would shed light on which laws would work best to protect life while having the least negative side effects.

And then there’s the question of what politics will bear. Making a federal law a priority would divert pro-lifers’ attention away from pressing political battles in the states. It would also divide them.

A lot of Republicans who think of themselves as pro-life don’t want to ban abortion in cases of rape and incest. A lot of pro-life activists think making those exceptions would be unjust. Getting enough pro-lifers in any state to agree on a law they can pass will be challenging enough; getting them to agree nationally would be more difficult still.

The backdrop of this debate is that neither side has been able to enact much in the way of federal legislation. Pro-lifers have repeatedly failed in recent years to break a filibuster in the Senate to pass a ban on abortion after 20 weeks, even though most polls show Americans lean in favor of one. Pro-choicers have been unable to muster a majority even in a Democratic Senate for a law they describe (somewhat misleadingly) as codifying Roe v. Wade. Even when each side is on its strongest political ground, then, it has failed to prevail in Congress.

So even though the legal door may be open for a federal ban on abortion, the political door is, for now, shut. How hard to push on it raises a series of prudential judgments.

Let’s say a senator who has been a longtime ally of pro-lifers says that, in her view, the federal government should leave abortion to the states — but that she will keep voting for conservative judicial nominees and against federal funding for abortion, and in other ways continue to be an ally. Should pro-lifers attack her and try to get her replaced in a primary?

I think the answer is no. But unless pro-lifers apply that kind of stringent test to politicians, they will not be able to get federal legislation. A real campaign for federal anti-abortion legislation would mire pro-lifers in one internal battle after another.

The upshot is that pro-lifers should not rule out federal action in principle. Laws restricting abortion throughout the country should be our goal. But for the foreseeable future, the main place to fight for such laws should be individual states.

More on the Supreme Court in Bloomberg Opinion:

• Ending Roe Is Institutional Suicide for Supreme Court: Noah Feldman

• What’s Not Going to Happen After Roe Falls: Ramesh Ponnuru 

• Can Companies Still Cover Abortion Costs?: Stephen L. Carter

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Ramesh Ponnuru is a Bloomberg Opinion columnist. He is the editor of National Review and a fellow at the American Enterprise Institute.

More stories like this are available on bloomberg.com/opinion

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