What's the Key to Winning the Abortion Battle?

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.


The stance won’t win over pro-choicers and risks alienating pro-lifers. The abortion dilemma is a great moral debate. On one side, proponents of abortion rights argue what’s at stake is a woman’s right to self-determination, to the control of her own body. On the pro-life side, we know this debate is about the fundamental right of every human being to live and whether we will slouch towards a Brave New World society where your rights are determined by your perceived utility, as well as the scientifically verifiable truth that abortion is emotionally and physically devastating to the woman.

In the midst of the fundamental moral question of our day, the pure federalist suggests the Republican Party take the lead of President Obama and vote present. Their credo could have been written by Senator Stephen Douglas, who declared, “It’s none of my business which way the slavery clause is decided. I care not whether it is voted up or down.”

The GOP is the party of Senator Douglas’s opponent.

Mr. Lincoln said, “A house divided against itself cannot stand.” Lincoln was not a radical abolitionist. His measures against slavery were to seek its containment, but people concerned with slavery could support him because he understood the stakes.

I believe this government cannot endure permanently half slave and half free. I do not expect the Union to be dissolved — I do not expect the house to fall — but I do expect it will cease to be divided. It will become all one thing, or all the other. Either the opponents of slavery will arrest the further spread of it, and place it where the public mind shall rest in the belief that it is in the course of ultimate extinction; or its advocates will push it forward, till it shall become alike lawful in all the States, old as well as new — North as well as South.


The pure federalist attempt is to make the argument to pro-lifers that the really horrible thing isn’t 50 million abortions, but that a court ruling was issued without dotting every “i” and crossing every “t.” The “I care not” position on abortion is, to paraphrase Samuel Johnson, the last refuge of scoundrels.  It usually means the politician is:

1)  incapable of making any controversial decision;

2) apathetic to the entire issue and the millions of concerned parties;

3) pro-choice, but would like to win pro-life votes so he makes the federalism argument, thus deceiving the people; or

4) pro-life, but hopes to deemphasize this by making a state’s rights argument. If they were sincere, it would be incumbent on them to call for the end of the federal drug war and social security. Neither were authorized in the Constitution.

In any case, the position is dishonest and cowardly. Legal technicalities aren’t of concern to most Americans, including most pro-lifers. If one is genuinely pro-life but genuinely feels the issue ought to be resolved at the state level, a politician should state, “I believe in the sanctity of human life and that it ought to be protected. I also believe that our federal policies should clear the way for states to pass pro-life laws.” If one’s pro-choice, be honest that you think abortion should be legal but that it would be far less divisive and corrosive to America if states made that decision.


Either position would receive far more respect from all concerned than trying to vote “present.”


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