Editor’s Note: Professor Robert George, McCormick Professor of Jurisprudence and director of the James Madison Program in American Ideals and Institutions at Princeton University, delivered a lecture — “Unborn Children and Equal Protection” — Jan. 18 at the Capitol Visitors Center in Washington, D.C. The event was sponsored by Belmont Abbey College. The text of the speech, delving into the legal arguments presented in the “Brief of Amici Curiae Scholars of Jurisprudence John M. Finnis and Robert P. George in Support of Petitioners” submitted to the Supreme Court in the Dobbs v. Jackson Women’s Health Organization case, is reprinted below with permission.
On Jan. 22, 1973, in Roe v. Wade and Doe v. Bolton, the Supreme Court of the United States struck down the laws of 50 states prohibiting or significantly restricting abortion. In the name of a generalized “right to privacy” allegedly implicit in the Due Process Clause of the Constitution’s 14th Amendment, seven justices (Blackmun, Burger, Douglas, Brennan, Stewart, Marshall and Powell) created a license to kill the unborn.
These men probably had no idea that they were unleashing a struggle for the soul of the nation — a struggle that continues to this day. Five of the Roe justices had been appointed by Republican presidents: two by Eisenhower, three by Nixon. Four of these five were regarded as conservative, “law-and-order” judges. All no doubt believed that legal abortion was an enlightened and humane policy, one that would ease the burdens of many women and girls and relieve the enormous cost to society of a high birthrate among indigent, often unmarried, women. They seemed blithely to assume that abortion would be easily integrated into the fabric of American social and political life.
They were wrong on all counts.
They were wrong about the Constitution. As the two dissenting justices (White and Rehnquist) pointed out, it is nothing short of absurd to claim that a right to feticide follows from the constitutional injunction that “no state shall deprive any person of life, liberty, or property without due process of law.”
If the Constitution has any implications for the question of abortion, and for reasons I will articulate today I believe it does have certain implications, it is that unborn human beings are, like everyone else, entitled to “the equal protection of the laws.” At a minimum, Roe and Doe were an outrageous usurpation of the constitutional authority of the people of the United States to shape law and policy through the institutions of representative government.
The Roe justices were also wrong to imagine that legal abortion would prove to be enlightened or in the slightest respect humane. On the contrary, the policy imposed by the Court proved to be an unmitigated disaster. In the 49 years, five months and two days that Roe was in force, abortion took the lives of tens of millions of unborn victims — each a distinct, unique, precious human being. The reign of Roe is also responsible for immeasurable moral, psychological, and sometimes physical harm to women who are so very often, and in so many respects, truly the abortion industry’s “secondary victims.”
Roe corrupted physicians and nurses by turning healers into killers. It undermined the moral authority of the law by its injustice. It abetted irresponsible — even predatory — male sexual behavior. Far from reducing the rate of out-of-wedlock births, particularly to poor women, illegitimacy skyrocketed in the age of abortion.
The Roe Court was wrong, moreover, to suppose that America, as a nation, would learn to live with the abortion license. A notable effect of the Court’s rulings was to energize the grassroots pro-life movement that had come into being a few years earlier to resist efforts to liberalize state abortion laws. In the beginning, the movement and its leadership were largely Catholic. The mainline Protestant churches, if they concerned themselves with the issue at all, positioned themselves on the pro-abortion side. At a decisive moment, however, the evangelical community became fully activated in the cause. For decades, a common commitment to defending the unborn has been at the heart of an unprecedented Catholic-evangelical alliance that extends beyond abortion to issues of sexuality, marriage and family, education, welfare, crime and prison policy, international human rights, and the place of religion in American public life. The pro-life alliance has also been joined by members of smaller communities of faith — Mormons and Orthodox Jews prominently among them.
Abortion is at the heart of the divide between the nation’s major political parties. When Roe was decided, many Democratic Party politicians — and even some notable liberals — were outspokenly pro-life. Teddy Kennedy and Jesse Jackson, for example, publicly proclaimed their commitment to defending the unborn against the violence of abortion. Soon, however, the number of pro-life Democrats began to dwindle and pro-life liberals became an endangered species. Some, like Kennedy and Jackson, for transparently political reasons, defected to the pro-abortion camp. People of firmer conviction found themselves in many cases carried by the force of conscience out of the Democratic Party and into the Republican fold.
By 1980, the Democrats were so firmly in the grip of the abortion power that it was widely regarded as impossible for a pro-life politician to compete for the party’s presidential nomination or be considered for the vice presidency. In 1992, to prevent any expression of dissent from what had become the party’s pro-abortion orthodoxy, the party denied Robert P. Casey, [a] hugely popular and successful two-term governor … a chance to speak to the Democratic National Convention. Instead, the party faithful were treated to remarks from a pro-abortion Republican woman who had actually worked for Casey’s opponent in the 1990 Pennsylvania gubernatorial election. Casey, running an explicitly pro-life campaign, had defeated her by more than a million votes, carrying 54 of the state’s 55 counties.
Although pro-abortion Republicans are today more common than pro-life Democrats, the Republican Party has been officially and securely pro-life since Ronald Reagan won the presidential nomination in 1980. “Pro-choice” Republican presidential aspirants have failed miserably, and the pro-life majority in the party has beaten back attempts to nominate individuals who are not clearly pro-life for the vice presidency. At recent national conventions, the party’s pro-abortion minority did not even venture a token effort to remove the strong and unequivocal pro-life plank in the party’s platform. Even Donald Trump, who had publicly supported the truly barbaric practice of partial-birth abortion, flipped to the pro-life side when he decided to seek the 2016 Republican presidential nomination.
The Republican Party’s support for the unborn has brought into its ranks many disaffected rank-and-file Democrats, including a large number of Catholics and evangelicals. Indeed, it overstates the matter only a bit to say that, as a result of the conflict of worldviews that began with abortion, the Republicans have become the party of the religiously engaged, while the Democrats have become the party of secularism. The major exception to this generalization is that among racial and ethnic minorities, many actively religious people — most of whom, the polls consistently tell us, are pro-life — continue to vote for the Democrats.
Roe is now gone, of course — overruled by the Supreme Court in Dobbs v. Jackson Women’s Health Organization. But it took much too long to achieve its reversal. And because law is a teacher — a shaper of consciousness and consciences — the lengthy reign of Roe now makes our task of securing by legislation effective protection of unborn children profoundly difficult. Americans have been taught for the past five decades that abortion is a woman’s right and that the unborn have no rights, at least none that protect them against the lethal violence of abortion. It is our job to help our fellow citizens to unlearn that false lesson. But we must not suppose that we cannot legislate until they’ve unlearned it. Indeed, part of how we will restore the public’s belief in the sanctity of unborn human life is precisely by achieving protection for our tiniest and most vulnerable brothers and sisters wherever we can through political action and legislation.
Why did Roe stand for five decades? It was an enormous disappointment that Republican presidents, though pledged to appointing “pro-life” justices, failed repeatedly to secure Supreme Court appointments for jurists who would reverse Roe v. Wade. Ronald Reagan gave us Sandra Day O’Connor and Anthony Kennedy. George H.W. Bush gave us David Souter. President Reagan’s nomination in 1987 of Judge Robert Bork — a sure bet to have provided what would have been the fifth and deciding vote to overturn Roe — was defeated by the Democratic-controlled Senate after a shameful campaign of vilification against one of the nation’s most distinguished legal scholars.
I have been a severe critic of President Donald Trump, but it cannot be denied that he kept his word in appointing constitutionalist judges at every level, including his three Supreme Court appointees. Trump claims credit for the fall of Roe v. Wade. And he is indeed entitled to claim credit. He did not nominate a Sandra O’Connor, an Anthony Kennedy or a David Souter. He nominated Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. They joined Clarence Thomas and Samuel Alito in bringing down the curtain on Roe.
Of course, success on the judicial front, when it finally came, was and is only the prelude to the larger political struggle: the one we find ourselves in today. Professor John Finnis of Oxford University and I in an amicus curiae brief filed in the Dobbs case argued that the Court should not only reverse Roe but recognize unborn children as persons who, as such, are entitled to the equal protection of the laws. Such a ruling would have forbidden states from permitting elective abortions. The Court did not, however, address the argument we advanced or take the action we urged. A future court, however, may someday do that. The argument for doing it has been placed before the Court and the pubic — and it is very strong. But, for now at least, the justices have returned the question of abortion and the rights of unborn children to the legislative domain: the domain of politics. And it is in this domain that we must defend the defenseless.
The burden, then, is on us to win the struggle for the soul of the nation. We must, with God’s help, persuade our fellow citizens to fulfill the promise of the Declaration of Independence and the Equal Protection Clause of the Constitution by bringing the unborn within the protection of our laws. And we must not permit ourselves to be daunted by the fact that our adversaries in this contest are dominant in the wealthiest, most influential, and most powerful sectors of the culture. They have Hollywood and the entertainment industry; they have the print and broadcast media; they have the universities and the intelligentsia; they have the professional associations, including the American Medical Association, the American Bar Association and the rest; they have the great philanthropic trusts; they have the large business corporations.
What do we have? Well, as Mother Teresa of Calcutta reminded us during her final visit to the United States, prayer is the most powerful weapon in the pro-life arsenal. We must ask God’s forgiveness for our great national sin of abandoning the unborn to the crime of abortion and implore his guidance and assistance in recalling the nation to its founding ideals of liberty and justice for all. While not every pro-life citizen can be an activist or a leader in the social and political spheres, everyone can pray, and no one’s prayers are superfluous.
In addition to prayer and our political efforts, we must reach out to pregnant women who are in need or who are subject for other reasons to pro-abortion pressures. The so-called pro-choice side, with the help of an overwhelmingly sympathetic media, have portrayed people who oppose abortion as heartless moralizers and enemies of women.
Nothing could be further from the truth. For more than 50 years, pro-life people — especially women, like my mother — have devoted themselves, often at great personal cost and in the face of many obstacles, to assisting pregnant women in need. They have recognized that a truly just and humane understanding is one that recognizes the common dignity and mutual interests of mother and child.
Ordinary pro-life individuals and families have worked and sacrificed to provide for the material, emotional and spiritual needs of pregnant women in need — many of whom, it must be noted, are driven to contemplate abortion under pressure from boyfriends, husbands, family and friends. Even women who have succumbed to the temptation to destroy their unborn children are not condemned or abandoned by the pro-life movement. Rather, they are offered forgiveness, reconciliation and healing — no strings attached.
And we must, truly, love our enemies. We must pray for those who have brought the license of abortion upon our nation and for those who today protect and try to sustain it. We must also pray for those who perform and profit from abortions.
Our love for them must be Godly and ungrudging. We must never give up on its power to transform.
Since the fall of Roe, we have lost major battles even in red states with strong pro-life movements, such as Kansas and Ohio. Blue states are swiftly moving to enshrine a right to abortion in their state constitutions. The self-described “pro-choice” party, the Democrats, their pro-abortion base having been energized by the Dobbs ruling, now view abortion as a winning issue for them and are emphasizing it, especially in conservative and moderate jurisdictions where their candidates are vulnerable due to the party’s massive lurch to the left in recent years. They have simple — indeed simplistic — talking points with which their candidates are comfortable and adept in using. They know how to talk about abortion, and they have no fear in talking about it. Our candidates, by contrast, don’t like talking about protecting unborn babies, aren’t good at it, and sound — because they are — defensive on the issue. In politics, when you are playing defense, you are losing.
First, we need to be realistic in setting achievable and sustainable goals and comfortable with an incrementalist strategy that puts legal abortion on the road to extinction. We need victories: victories that will underwrite future victories. We need to get what we can, where and when we can get it, protecting as many unborn children as we can, but with the firm resolution not to stop moving forward until we achieve our ultimate objective: an America in which every child is protected by law and welcomed in life — an America which truly honors the profound, inherent and equal dignity of each and every member of the human family.
The possibilities in different states differ, of course. But while working in the states we also need to be working at the national level, both to cast the mantle of legal protection over unborn children and to provide care and support for mothers in circumstances in which, absent that care and support, they are vulnerable to pressure to destroy their children. We need to become an America where no woman finds herself imagining that she has no alternative to aborting her child.
When it comes to legal protection, there is a debate even among pro-life politicians, lawyers and legal scholars as to the scope, if any, of the federal government’s power to legislate against elective abortion. Some believe that the federal government has little or no constitutional authority to prohibit abortion when states fail to protect unborn children, leaving babies in deep blue states like California and New York legally vulnerable to lethal violence to the very point of birth. In my opinion, however, they could not be more wrong.
Why? Because the 14th Amendment to the Constitution forbids the states from denying to any person within their jurisdiction the equal protection of the laws. Where a state fails to protect a person or class of persons, it is the duty of the federal government, explicitly set forth in Section Five of the 14th Amendment, by appropriate legislation to ensure to potential victims of unequal treatment the full protection of the laws. Are unborn babies persons? As a matter of moral fact, they are. That is because the offspring of human parents, from the earliest embryonic stage of their development forward, are — and are undeniably — distinct, complete, albeit dependent and developing, living members of the species Homo sapiens: human beings. And all human beings are persons — that is, creatures whose nature is a rational nature. Like human beings in the infant stage, human beings in the fetal and embryonic stages of development do not yet carry out characteristically human mental activities; yet embryonic, fetal and infant human beings are organized precisely to develop the immediately exercisable capacities for precisely such activities. That is their nature.
But one might ask: Are human beings in the embryonic and fetal stages persons for purposes of the Constitution, the 14th Amendment? Again, the answer is Yes. As John Finnis and I demonstrated with an avalanche of evidence from legal, medical and other sources in our amicus curiae brief in Dobbs, the publicly understood meaning of the term “person” at the time of ratification of the 14th Amendment included, uncontroversially, unborn children from the earliest stages of their existence. The point is simply not debatable. The evidence is overwhelming. And this being true, Congress has every right, and, indeed, a constitutional duty, to ensure by appropriate legislation that the unborn are protected — equally protected — in states such as California, New York, Illinois and Colorado that would deny them the protections to which they are constitutionally entitled. What that means concretely is that the national government constitutionally may, and is in truth constitutionally obligated to, in the face of the failure of states to do their constitutional duty, protect unborn babies against elective abortions — that is, abortions performed, as the overwhelming majority of abortions are performed, for reasons other than to prevent death or grave physical harm to the mother.
Now, as a political matter, it is true that federal legislation of the sort required cannot be achieved at the moment. As I said, we should get what we can where and when we can get it, resolved in our minds and hearts to keep moving forward until we achieve our ultimate goal. But we should not let politicians who profess themselves to be pro-life, and who seek the support of pro-life voters, off the hook when it comes to state or federal legislation to move the cause forward. Defections and betrayals by politicians should be met with swift and certain retaliation at the ballot box. We need to demand that our politicians learn to discuss the issue and to feel comfortable advocating for the justice of the cause. They need to become effective advocates of the rights of unborn babies. That will help them electorally, even as it helps the pro-life cause. But without pressure from us, many, perhaps most, won’t make the effort. Serious politicians, people like Abraham Lincoln, lead, and do not merely follow, public opinion.
Will we prevail? There are good reasons for hope. And there is no reason to believe that we are doomed to fail — despite our recent losses. But the ultimate victory, if it comes, could be a long way off. It may come only after a lengthy struggle. But we in the pro-life movement know all about lengthy struggles. We really did struggle — never giving up hope, never tiring, never resting — for 49 years, five months and two days to overturn Roe v. Wade. Even some who were sympathetic to our cause told us that it was hopeless, that Roe was etched in marble, that it could never be overturned. And yet, even in the face of disappointments and betrayals, we labored on until we prevailed.
Still, while there are good grounds for hope, there are no guarantees. As in all things, for us, there is only the honest and dedicated trying. The victory is ultimately in God’s hands and will come, if it does come, in his time and on his terms.
We do know this: Our prayers, political and educational efforts and outreach to pregnant women in need have, by God’s mercy, already saved countless precious lives. We must not lose sight of this fact in our grief at the loss of so many others due to the injustice of our laws and the coldness of so many hearts toward abortion’s tiny victims. And we have indeed, with nearly unimaginable constancy and effort, achieved our proximate goal of overturning the moral and constitutional abomination that was Roe v. Wade.
Reflecting on the carnage of the Civil War, Abraham Lincoln in his Second Inaugural Address concluded that “the great scourge of war” had been brought upon both North and South as punishment for the national sin of slavery. Perhaps God saw fit to let the nation survive despite that sin because of the sincere, selfless, prayerful and untiring efforts of the enemies of slavery to end that monstrous evil.
Thanks be to God, the conflict over abortion has not produced, and will not produce, a civil war. Still, we must not forget that we are a people under judgment. We are called to account for the national sin of abortion. Like Thomas Jefferson, we must “tremble for our country when we consider that God is just.”
We must pray that God, in his mercy, will not abandon us but will rather restore us to the ideals of our nation’s founding: our commitment to liberty and justice for all. We must plead that he will once again let the nation survive. This time, though, the question is not whether there will be a political entity called “the United States of America” on the North American continent; rather, it is whether the United States of America will remain a nation “dedicated to the proposition that all men are created equal.”
George, Robert P.: (c) 2023 EWTN News, Inc. Reprinted with permission from the National Catholic Register – http://www.ncregister.com.