Should pro-lifers change how they talk about abortion? PJM’s Nicholas Guariglia thinks so, writing, “For example, rather than remain fixated on the immorality of abortion, why not emphasize the unconstitutionality of Roe v. Wade itself?”
Certainly, Roe v. Wade was wrongfully decided. Far too much time is spent hand-wringing over whether pro-lifers should seek to make pro-life laws at the state level or whether there should be a federal constitutional amendment.
Under Article V of the Constitution, a federal constitutional amendment would require obtaining the votes of 290 members of the House, 67 senators, and 38 state legislatures. We’re not at that level of consensus, and we won’t get there any time soon.
That said, there’s a problem with Guariglia’s case for legal positivism on abortion that’s typical of the tactics suggested by those unconcerned with the issue. Namely, it believes abortion to be primarily a political issue when abortion is primarily a cultural issue.
Let’s consider those who work tirelessly outside of abortion clinics to persuade women to choose life. Would the appropriate argument in that case be: “Ma’am, don’t you know that this abortion is being facilitated by a wrongheaded court decision?”
At least one piece of anecdotal evidence suggests the moral argument made in the halls of power has an impact on the decisions of the people. During the partial-birth abortion debate, one woman heard former Senator Rick Santorum’s eloquent arguments and changed her mind about getting an abortion.
It has been argued, with some justification, that the key to winning the abortion battle is to change hearts and minds. Santorum did that with his moral arguments on the Senate floor. Did Fred Thompson’s federalism position on abortion achieve that end?
The argument that abortion ought to be left up to the states is a lawyer’s argument. Consider then that famed defense attorney Gerry Spence wrote a book entitled How to Argue and Win Every Time, which states that the goal of the argument is to get what you want. If our aim is to persuade those who are moderately pro-choice to support us, the pure federalist argument is an awful argument.
If a politician stood up and took Mr. Guariglia’s position, abortion advocates would likely respond: “My opponent wants states to be able to take away a woman’s right to choose because of his interpretation of the Constitution. Because of a quirk in the law, he’s willing to see women bleed and die from illegal back alley abortions, which will become commonplace. Wasn’t it the conservatives who were saying a few years ago that the Constitution wasn’t a suicide pact. Apparently, that doesn’t apply to women.”
Which politician would come out better? If you’d think it’d be the one who allowed himself to be painted as a pharisaical legalist who would allow women to die for the sake of a legal argument, I’d suggest restudying Politics 101.