Making the Debate Real
On Recent Pro-Life Laws
In his new book My Father Left Me Ireland and in an interview about the book with Ezra Klein, Michael Brendan Dougherty describes the 1916 Easter Rising as a historical miracle—an action that seemed foolish and doomed and that did indeed end at first in failure. Ultimately, however, it led to the establishment of an independent Ireland.
For Dougherty, the Rising was a piece of prescient boldness that justified itself in its surprising success. “There is a way of doing things,” he writes, “that is, in itself, persuasive. Sometimes just doing them is its own argument.” I thought about all of this in light of the recent abortion legislation in Alabama and Georgia and the debate that has ensued among pro-lifers about the wisdom of this legislation.
It was clear before these laws became news that pro-lifers disagreed about the right policies to pursue in the present moment. As Sarah Pulliam Bailey reported in the Washington Post in April, there were then pro-life leaders who doubted that the rash of heartbeat legislation was a good strategy. The Tennessee Catholic Bishops and Tennessee Right to Life both opposed their state’s heartbeat bill; Ohio’s Bishops, however, supported the bill in their state. In March David French was arguing at National Review for heartbeat bills, stating that “it’s time to throw down the gauntlet, declare to the world (and to the Court) that the era of incrementalism is over, and show that the people are ready to embrace life.” Ramesh Ponnuru disagreed.
Since the passage of the Alabama and Georgia laws this debate has continued. French has written again, as has Ponnuru. Others have weighed in. Some figures in the national GOP have said they favor exceptions not included in the Alabama law.
From one perspective, these laws will be justified if they succeed in giving the Supreme Court an occasion or a reason to overturn Roe—or at least significantly to revise it further. If they fail in that aim, the worst case scenario is not merely that these laws do not go into effect and the law remains unchanged. The worst case scenario rather seems to be that they could provide an occasion for the strengthening of Roe/Casey precedent or for some other adverse legal outcome. As I noted in my previous newsletter, the recent ruling of the Kansas Supreme Court finding a right to abortion in the Kansas state Constitution was occasioned by a piece of pro-life legislation.
I do not know if these laws will lead to the overturning of Roe or its further revision. I do not know if they will even make it to the Supreme Court. I do think that their success or failure in court will be a crucial factor in assessing their ultimate value. The judicial future, however, is not the only factor in assessing these bills.
Whatever else may happen in the coming months and years, the bills have already proven to have value in some respects: they have exploded, rather than expanded, the Overton window, they have forced the debate, and they have made that debate more real and more honest.
These laws, especially the Alabama law, straightforwardly put before the public a more maximal pro-life position and thereby give the country something real to debate. As David French notes, “both Alabama’s abortion ban and Georgia’s heartbeat law contain a key provision — they declare the personhood of the unborn child.” Of course, many pro-lifers have long argued for the view that abortion terminates a human life that the state has a duty to protect, but there is a difference between arguments contained in pro-life works and speeches and positions put before the public in a legislative setting.
Pro-choicers will certainly still attempt to reject or evade this framing—positing, for example, that pro-lifers don’t really care about human life—but these laws make the claims of pro-lifers more live and more real. They make it to harder to evade the commitment of pro-lifers to those claims and that alone makes the claims more robust. Moreover, these laws force, as well as frame, the debate. That can play well for pro-lifers as long as they conduct the debate well (eschewing any dubious science, avoiding extraneous arguments). The pro-choice position is incorrect and forcing them to spend more time explaining and defending their position can help show that it is incorrect.
These bills also make the debate more honest. The incrementalist approach to pro-life legislation has certainly yielded gains, but those gains have been achieved through legislation that sometimes seems transparent in its attempts at craftiness. For instance, legislation requiring hospital admitting privileges strikes me, anyway, as an attempt to reduce abortion access without making the case for a central belief motivating those who support such laws, that unborn human life should be protected. The attempt to legislate incrementally may in certain cases have caused people to advance arguments and legislation that are actually less persuasive than a straightforward statement of this central motive would be.
I do not think we can know the full value of these laws until we see how they fare in court, but in the meantime these advantages speak in their favor. If I may appropriate Dougherty’s words to this occasion: “There is a way of doing things that is, in itself, persuasive. Sometimes just doing them is its own argument.”
In the moment when these laws are being passed, I think a few things are important to recognize:
There can be good faith disagreements over strategy among pro-lifers
It is more important than ever for the pro-life movement to eschew bad science, distance itself from disreputable associations, and attend to optics. An example of bad science in a recent Ohio bill comes courtesy of Matthew Loftus.
Pro-lifers should use this occasion to double down on the care and support members of the movement have given to pregnant women. Pro-lifers often confront the question of whether and how they care for mothers or born babies by suggesting this challenge is a slander or is offered in bad faith. While that may of course be true in any given case, I would suggest viewing it as an opportunity to give more (if and as possible) and to share joyfully and persistently what pro-lifers are doing in this regard.
I’m considering retitling this newsletter after a reader pointed out that a connotation of the current one. Update to follow, but thoughts or suggestions are welcome at lifecyclesletter@gmail.com.
Off-topic:
If you ever find yourself in the Boston area and are looking for a used bookstore, I suggest checking out Raven Used Books in Cambridge (originally h/t Tara Ann Thieke). They have a very good selection that’s skewed towards the kind of books I suspect many of this newsletter’s extremely large readership would be interested in.