🎙️ Voice is AI-generated. Inconsistencies may occur.
The conservative Supreme Court majority in Dobbs v. Jackson overruled Roe v. Wade, but held back from saying anything emphatic on the humanity of the child in the womb and the wrongness of taking that innocent life. In a caricature of conservative jurisprudence, the Justices left those moral judgments to elected officials—as though judges could somehow do their day jobs without ever needing to say anything about the grounds for judging things rightful and wrongful.
The task of dealing with abortion would be handed off, then, to the Republican political class. But that class long ago told itself that the overruling of Roe would simply return the issue of abortion to the political arena in the separate states. Many Republicans in Congress have been quite content to wash their hands of this vexing business. But abortion has long been the business of the Congress and the federal government—as in the performance of abortion in military hospitals, in diplomatic and military outposts abroad, in the Territories and yes, in the District of Columbia. Some Republicans seemed to forget that Republican Congresses outlawed grisly partial-birth abortions and passed an act barring the killing of babies who had survived abortion. But now in the aftermath of the Dobbs case, the Republicans in Congress have been blindsided and cowed, not clear which foot to put forward.
While the Republicans seem thrown off and defensive, surveys have suggested that abortion as an issue is working more strongly in favor of the Democrats. Republicans have been content to assume that the public cares far more about inflation, unsecured borders, and rising crime in cities, and well it might. But we know that the Democrats see abortion as the strongest lever they have, and they are sure to campaign aggressively on the issue. Not for nothing have the Democrats spent around $120 million in ads on abortion, and that is the clear sign that they see it as the one thing that may save them.
And yet that confidence is bizarre, for the position of the Democrats on this issue is far more radical than most of the public would imagine or accept. On two separate occasions—in September 2015 and January 2018—virtually all the Democrats in the House held together to oppose the Born-Alive Abortion Survivors Protection Act, which would have finally applied serious penalties for the killing of babies who had survived abortions. The media succeeded in burying the story, and even the Fox network was willing to go along with that filtering of the news.
But here is the obvious brute fact right now. Abortion is the point where the Democrats are most seriously vulnerable to the recoil of the public—if that public only knew. And so, without getting into the weeds of legislation to come, Republican candidates at every level, including for the House and the Senate, can crystallize this simple challenge to their Democratic opponents:
"Your party voted almost unanimously in the House in 2015 and 2018 against a bill that orders serious penalties for the killing of babies who survive abortion. Every voting Republican voted for it, while 177 Democrats in 2015 and 183 in 2018 voted against. When the bill was introduced in the Senate, Democrats kept it from gaining the 60 votes needed to bring the bill to the floor for a vote. When this bill is introduced again—as it will be—will you actually join your party in refusing to protect children born alive after an attempted abortion?"
Faced with this challenge, Democratic candidates may fall back on the line that abortion should not be the business of Congress and the federal government. But that position is belied by the fact that the Biden administration and the Democratic Congress have been active in trying to use the federal powers to secure the right to abortion at every level, from federal to local. That is what is so much at work, with high fanfare, in the new "Women's Health Protection Act": to secure the right to abortion even in the pro-life states that seriously restrict or forbid abortion.
And so, the other simple question for Democratic candidates: "If you stand on the principle that the Congress should not legislate on abortion, are you pledging to us firmly that you will not vote for this Womens' Health Protection Act, brought forth to rally all members of your party?" That act would sweep away the serious restrictions on abortion in pro-life states.
Clear everything away and strip the issue down to these two simple, earnest questions. They are sure to break out news that the public would find jolting. But in revealing the true position of the Democrats on the lives of unborn children, the answers promise to produce some electric effects, all the more powerful in being so long unexpected.
Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the founder of the James Wilson Institute on Natural Rights and the American Founding.
The views expressed in this article are the writer's own.
