The demise of Roe and Casey opens new possibilities for America’s future. The sheer range of these new possibilities can be disorienting. The cause that animated the religious right for 49 years has fundamentally shifted. Now what?
Of course, Roe’s downfall is rightly the cause of unmitigated celebration by the religious right. At the time of writing, it is likely that tens of thousands of unborn persons have been spared as a direct result of the Supreme Court’s ruling. Praise should be widely distributed; to the unsung efforts of countless volunteer workers at crisis pregnancy centers across the country; to the unrelenting work of state pro-life organizations who’ve worked tirelessly for years in state legislatures. And yes, the conservative legal movement, which has taken its share of criticism from the right in recent years (some of it justified) was without question a necessary condition for Roe’s demise. The sustained efforts of Robert George, Ed Whelan, the Federalist Society and many others were indispensable in training elite and solidly pro-life lawyers and judges and ultimately delivering a pro-life court.
But as the season for celebration passes and we return to Ordinary Time, so to speak, we face terra incognita. This moment of chaos and uncertainty creates tremendous opportunity for forward thinking leaders.
To be sure, litigation will continue to remain an important aspect of the pro-life movement. New constitutional questions will present themselves. Is it permissible for a state to ban abortifacient pills (or does the FDA’s approval preempt state regulation)? Can the federal government operate abortion clinics on federal land within states that ban abortions? May a pro-life state criminalize abortions that take place outside its own borders? May a state criminalize a company for paying for its employees to travel for abortions? And—the Holy Grail—does the 14th Amendment confer a right to life on all unborn persons within the United States? I am confident that the conservative legal movement will be competent and well-equipped to handle these sorts of questions, and the prospects of pro-life outcomes are decent given the Court’s current makeup.
But litigation is now just one modest front in the reshaped culture war.
We should be fully prepared for a full-court press of pro-abortion propaganda by regime outlets. There will be an unrelenting parade of horribles, from allegations of women being forced to suffer through ectopic pregnancies, to women dying in back-alley abortions. The vast regime media complex that was so incurious regarding atrocities committed at abortion clinics like Hermit Gosnell’s will now unleash an army of reporters in pro-life states and attempt to make a national scandal out of any accident or death anywhere. Pro-lifers need to resolve themselves now not to flinch in the face of these very predictable attacks and recognize them for what they are: manipulative propaganda from dishonest brokers whose studied disinterest in the abortion industry’s dismal safety record renders them completely uncredible. At the same time, the religious right will need to go on a media offensive of its own. Roe’s overturning will create momentum for further liberalization of the already barbaric late term abortion laws in blue states, where abortion is increasingly taking on the form of a religious sacrament—a right of passage into fully embodied progressive womanhood. Unflinching looks at places where the culture of death reigns will galvanize the pro-life cause in red states and bolster the political will to do justice for the unborn at a national level as well.
More fundamental changes lurk in the background. Dobbs will unquestionably increase polarization between states, in a way that makes red states more pro-life, but also retrenches pro-abortion sentiments in blue states. The “big sort” was well underway before Dobbs. According to a study commissioned by Upwork in the spring of 2022, 4.9 million have already relocated as a result of remote work coming out of the COVID-19 pandemic, with some 18.9 million still intending to relocate. As Matthew Peterson recently explained in the American Mind (just before Dobbs was announced), much of this migration is explained by people seeking to make homes in areas conducive to their preferred way of life. We should fully expect that whether a state is pro-choice or pro-life will be a major factor in relocation decisions. Taken together with recent Supreme Court decisions allowing and then mandating that religious schools receive voucher funding, it is very likely that the way of life in particular states will grow ever more distinct.
Dobbs will also amplify already existing trends toward polarized commercial behavior. Corporations that choose to take an aggressive stance by offering to pay for employees to travel for abortion will shed conservative customers. Customers will look for alternatives out of an instinct that voluntarily engaging in commercial activity with such a company might constitute material aid for evil. And state action will accentuate the dynamic of certain corporations setting themselves up as enemies of certain states. Corporations will increasingly and straightforwardly oppose the political will of red states, and red state leaders will increasingly respond in kind. Many corporations will have increasing difficulty maintaining a neutral posture as they consider whether they should be headquartered or do business in a particular state.
While we must not be naive about where we stand in America today out of a misplaced desire to lessen cultural tensions and polarization (even as we do what we can not to make those tensions worse) many new possibilities present themselves for civic-minded Christians. In our new environment, state leaders will be able to exercise muscles that may have atrophied over the last 70 years. A slew of decisions from the Warren court and its immediate successors – of which Roe is the crown jewel—systemically neutered Christian political will so that even states with super-majorities of confessed Christians have been unable to employ state power with regard to matters of public morality. Now, Christians holding the levers of political power can no longer hide behind Supreme court precedent. They will be called upon to enact just laws that protect the unborn and will have the opportunity to accomplish much more, if they have the courage for it.
We will need to excise bad Christian thinking about political power. So thorough was the Warren Court’s quiet revolution that it has somehow become commonplace for Christians of many stripes to believe it is a deeply American truism that we cannot legislate morality. As many articles in American Reformers’ pages will attest, nothing could be further from the truth. From its very beginning, the American colonies and then the states have necessarily depended upon substantive commitments to what is just. Rulers of red states will need to get back to the task of ruling justly and galvanizing their constituencies to support the same. As the political fortunes of Ron DeSantis amply demonstrate, citizens—even in politically moderate states like Florida—are hungry for leaders who can be their champions on moral and cultural issues.
The new legal fronts I mentioned at the front end of this article will open up new opportunities for bold political action. Largely this is the case due to the rapid devolution of governmental power to individual states in recent years. There may soon be situations where states are in a position to oppose unlawful federal action. For example, if the federal government seeks to establish abortion clinics on federal lands within states that have prohibited abortion, a state may very well find it necessary to shut those clinics down by force. Christian leaders will do well to recover the doctrine of the lesser magistrate, a doctrine that says each political leader at various levels of government owes an independent duty to God to rule justly, serving as a check on the unbridled power of others. This doctrine harmonizes well with American federalism and departmentalism, which posits that state officials owe independent duties of fidelity to the federal constitution. Their credible threat of non-compliance in the face of injustice acts as a deterrent against self-aggrandizing branches of the federal government.
In this chaotic and uncertain moment, Christian civic leaders should seize this historic opportunity. Circumstances have aligned that make it plausible to form new “cities on hill” by forming state enclaves where justice can prevail. In so doing we can display a sharp contrast with the human wreckage wrought in states thoroughly dominated by the anti-human forces of modern progressivism. Red states will be the gymnasium where a new religious right can re-engage the atrophied muscles of courage and justice so that, when the moment comes, we will be fit to lead the whole nation to these noble ends.
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