(LifeSiteNews) – With the initial euphoria of last year’s overturn of Roe v. Wade firmly behind us, the pro-life movement is now focused on our next steps. Republican-controlled states work diligently to restrict abortion within their borders, and a group of leading pro-life activists and thinkers recently issued a joint call for their federal counterparts to pursue nationwide abortion prohibition, citing the equal protection principles of the 14th Amendment to the U.S. Constitution.
Of course, the latter conversation implicitly invites a perfectly reasonable question as to why the U.S. Supreme Court didn’t just apply those 14th Amendment principles last year, prompting some to see the Dobbs v. Jackson Women’s Health Organization ruling not as a seismic victory but as a letdown that could have gone much further.
It’s understandable to be frustrated that after half a century we still have so far to go, and it’s healthy to periodically remind ourselves that the daily slaughter of children demands a sense of urgency that’s easy to lose in the political process. But however well intentioned, that discontent cannot help the preborn unless and until it’s connected to an understanding of why Dobbs never stood a chance of being the all-in-one abortion solution of pro-life dreams.
First, it’s worth noting that while the 14th Amendment couldn’t be clearer that no state may “deny to any person within its jurisdiction the equal protection of the laws,” it also identifies Congress, not the judiciary, as the body with “the power to enforce” that standard “by appropriate legislation.” That alone would be enough to convince many serious, well-meaning jurists to stay out of it.
It’s easy to see why; declaring a standard is much simpler than crafting a workable policy to implement it for all 50 states. Does equal protection require equal penalties for born and preborn killing (an issue raised by the question of jailing abortionists but not the women who seek them out)? How much discretion should states be allowed to vary on the details? These are questions of value judgments, practicality, and trade-offs, which are rightly the typical province of elected policymakers, not unaccountable judges.
To be clear, this isn’t to say that the Supreme Court could not or should not still weigh in, like with some bare minimum that a discriminatory state needs to meet, or even just a formal call on Congress to live up to its obligations under the Amendment. Which brings us to the more fundamental reason why we don’t have a Supreme Court that is interested in even beginning to tackle these questions: because it takes strong judges to deliver strong rulings, and the conservative and pro-life movements simply don’t demand strong judges.
Oh, sure, for decades we’ve complained about Republican presidents choosing “stealth nominees” that turned out disastrously. But those complaints never translated to new litmus tests anyone ever tried to enforce. Despite all three of his GOP predecessors delivering letdowns like Sandra Day O’Connor, David Souter, and John Roberts (along with gems Antonin Scalia, Clarence Thomas, and Samuel Alito, to be fair), when the time came for Donald Trump to make his picks, leading voices were largely content to assume that his outsourcing of judicial selections to the Heritage Foundation and Federalist Society was enough of a guarantee.
Well, it turns out that it wasn’t. While Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett absolutely came through in Dobbs and other cases, and by the end of 2020 the federal judiciary was vastly preferable overall to whatever a President Hillary Clinton would have turned it into, they also let us down on scores of other cases concerning state-level COVID vaccine mandates, religious freedom cases, and transgender insanity, as we have previously summarized here and here.
Even more shocking jurists snuck through to lower courts, including pro-abortion judges Charles Goodwin and Robert Colville and LGBT legal group alums Patrick Bumatay and Mary Rowland. Earlier this month, U.S. District Court Judge James Patrick Hanlon, a Trump appointee, agreed to temporarily block Indiana’s ban on administering puberty blockers and cross-sex hormones to minors on the grounds that the leftist ACLU-Indiana had supposedly demonstrated “some likelihood of success” in proving the ban unconstitutional.
None of this would surprise anyone who was paying attention. While many were content to please and be pleased by celebratory rhetoric about the volume and pace of Trump and Mitch McConnell’s work to confirm Republican judges, light bulbs should have gone off about how thorough the Senate’s review of judicial nominees could have possibly been when treating the confirmation process like a conveyor belt. Even when the Senate did take its time for the SCOTUS seats, major red flags about deferring to precedent in nominees’ testimony went largely ignored (again, those red flags thankfully did not ruin Dobbs, but did indicate defects in their jurisprudence that have manifested elsewhere).
This is not a problem that can be neatly laid at the feet of any one culprit in the Right’s ongoing divisions, but rather a failure of the entire Republican Party and conservative coalition: Donald Trump and the Senate GOP leader whom Trump now hates, pro-Trump and anti-Trump GOP senators, party elites and grassroots-aligned voices, pro-life activists and Republicans who care for nothing but tax cuts. Everybody neglected the importance of making absolutely sure to whom we were entrusting lifetime power.
With all that in mind, the Dobbs ruling really was the absolute best we could have realistically expected out of the Supreme Court’s current majority; if anything, the fact that it turned out as strong as it was is nothing short of miraculous. If pro-lifers want a future majority to go even further, there’s only one way we’re ever going to get it: by paying closer attention to who we’re nominating and making our expectations clear to the politicians responsible for proposing and approving them.
