(LifeSiteNews) — It’s hardly news these days that National Review is not the leading conservative voice it once was, but it’s sometimes easy to forget that the reasons for its decline run deeper than Donald Trump. This week, the publication’s “conservatarian” senior writer Charles C.W. Cooke reminded us that you don’t have to be a fan of the 45th president to suspect that William F. Buckley is looking down from heaven and wincing at what his magazine has become.
Reacting to Senate Democrats’ failed attempt this week to codify abortion-on-demand in federal law, Cooke correctly opines that the so-called Women’s Health Protection Act is “clearly, flatly, stonkingly unconstitutional.” Which it is, of course; nothing in the Constitution so much as hints at a “right” to abortion.
However, Cooke then overstates the Constitution’s presumed neutrality on the subject to argue that any federal abortion law would be unconstitutional, overlooking plain text of the Constitution that pretty clearly says otherwise:
The federal government enjoys only the limited powers that are delegated to it by the federal Constitution, and setting abortion policy is obviously not among them. Abortion is not “Commerce,” as that term was originally understood by the public — and nor is it a tax, duty, impose, excise, debt, or credit; a rule of naturalization or bankruptcy; a standard or weight of measure; a punishment against counterfeiting; a post office or postal road — or the use of them; a type of patent; a lower court; an example of piracy or felony committed on the high seas; a matter of war, or a letter of marque and reprisal, or an army or navy; or a calling forth of, or disciplining of, the militia. Abortion is not spending; it’s not naturalization policy; it’s not the addition of a new state or territory; it’s not the time, place, or manner of a federal election. Nor, in either direction, does abortion come within the purview of any of the 27 amendments that have been added to the Constitution since 1787.
It is true that the Commerce Clause, modern Washington’s favorite excuse for having Congress do whatever it wants, does not contain any authority to regulate abortion. It is also true that past federal pro-life laws have wrongly cited the Commerce Clause as the source of such authority (though it’s worth noting that the Pain-Capable Unborn Child Protection Act, for instance, referenced the Commerce Clause only in the context of Supreme Court precedents, indicating that such invocations are merely attempts to speak the current justices’ language, as it were).
But it is not true that authority to regulate abortion cannot be found elsewhere in the Constitution. It’s a shame that an editor didn’t catch Cooke’s assertion that abortion does not “come within the purview of any of the 27 amendments that have been added to the Constitution since 1787,” because the fourteenth one settles the matter quite conclusively.
The 14th Amendment explicitly forbids any state from “deny[ing] to any person within its jurisdiction the equal protection of the laws,” which “Congress shall have the power to enforce, by appropriate legislation.” From there, the only question left is whether the preborn are people.
As a matter of biological fact, yes. Do they qualify as “persons” in the constitutional sense of the term? Also yes — as attorney Josh Craddock has exhaustively shown, the Constitution was built on a legal tradition that recognized that personhood exists before birth (with the “quickening” line a mere evidentiary standard rooted in limited medical knowledge of the time, not a moral statement about worth attaching to developmental stage).
“By the time of the Fourteenth Amendment’s adoption [in 1868], ‘nearly every state had criminal legislation proscribing abortion,’ and most of these statutes were classified among ‘offenses against the person,’” Craddock noted. Most important, the Amendment’s drafters were clear about how they intended “person” to be understood:
The Amendment was carefully worded to “bring within the aegis of due process and equal protection clauses every member of the human race, regardless of age, imperfection, or condition of unwantedness.” Senator Jacob Howard, who sponsored the Amendment in the Senate, declared the Amendment’s purpose to “disable a state from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty and property without due process.” Even the lowest and “most despised of the [human] race” were guaranteed equal protection. Representative Thaddeus Stevens called the Amendment “a superstructure of perfect equality of every human being before the law; of impartial protection to everyone in whose breast God had placed an immortal soul.” Representative James Brown simply put it: “Does the term ‘person’ carry with it anything further than a simple allusion to the existence of the individual?”
The primary Framer of the Fourteenth Amendment, Representative John Bingham, intended it to ensure that “no state in the Union should deny to any human being … the equal protection of the laws.” He described the Amendment as a remedy to the denial of basic human rights:
[B]y putting a limitation expressly in the Constitution … so that when … any other State shall in its madness or its folly refuse to the gentleman, or his children or to me or to mine, any of the rights which pertain to American citizenship or to common humanity, there will be redress for the wrong through the power and majesty of American law.
If something is a human being, then he or she is a person for the purposes of 14th Amendment application. Case closed.
Without addressing any of that, Cooke goes on to observe that there are only a “handful [of] circumstances in which the federal government may regulate the killing of human brings — if a murder victim is a federal judge, federal official, federal law enforcement officer, or is killed at sea or on federal property, for example — but, outside of those narrow confines, there are no national laws prohibiting (or mandating) homicide, because there is no federal power to prohibit (or mandate) homicide.”
This is true as far as it goes, but it doesn’t go as far as Cooke thinks, for the simple fact that a federal abortion ban would not be an exercise of federal homicide power; it would be an exercise of the federal government’s explicit constitutional obligation to enforce equal protection. For a state to exempt an entire class of people from its protections against homicide is about as unequal as it gets.
(Theoretically, Cooke might have a point if there were any states that didn’t prohibit killing people, in which case open season on the born and preborn alike would technically be “equal.” But I’m not aware of any lawmakers proposing that we try out The Purge in real life.)
Beyond misstating what the Constitution says on the subject, the broader impulse to leave abortion purely (or mostly) to the states betrays a misunderstanding — or at least misapplying — of the principles of federalism and their limits.
Yes, part of the Founders’ genius was leaving as much as possible to states’ discretion, including nearly all of their internal affairs, to a degree that many would deem unthinkable today. Allowing drastic diversity on so much is how the Constitution enables hundreds of millions of people with vastly differing views and values to live in harmony under a single flag … but we still need unity on the most basic rights that we declared independence to protect.
If I don’t like my state’s schools, taxes, COVID policies, business regulations, gun restrictions, or drug laws, and if I can’t persuade my fellow residents to change them, then I can escape those things by moving to a different state. But preborn babies can’t. They’re completely at the mercy of others; “voting with your feet” only works if you are the one being affected by a bad policy. That’s why the federal government must eventually step in to ensure their unalienable rights are secured.
Cooke closes by declaring that it “would be utterly extraordinary if, having spent fifty years trying to convince the public and the courts that the Constitution is silent on abortion, conservatives applied this principle only to the judicial branch.” Speak for yourself — the Constitution isn’t silent on the equality of basic human rights, which means that it isn’t silent on abortion, so conservatives shouldn’t try to convince the public or the courts that it is.
I won’t presume to know whether this woefully misleading piece was inspired by libertarian tunnel vision, deference to swamp sensibilities, or something else. But whatever the root cause, it’s another sad reminder that conservatives looking for reliable conservative leadership on the gravest causes of the day should look elsewhere than National Review.