Bring Out Your Dead
The Ohio plebiscite referendum is a disappointment, but it points to the way forward.
Grim news from Ohio. The first phase of an effort to enshrine a right to abortion in the state constitution has succeeded. Ohio is unusual in that its state constitution can be amended with a referendum passed on a simple majority—50 percent plus one vote. Issue 1 was a referendum to increase this requirement to 60 percent, with an eye toward preventing the Buckeye State from obviating its abortion legislation with a skin-of-the-teeth referendum vote.
Issue 1 failed; 57 percent of voters said “no.” Pro-abortion advocates hailed this as a victory, with an eye to the 58 percent of likely Ohioan voters who have said that they would support an abortion-rights ballot measure in the next election. This episode is typical of the post-Dobbs failures to protect the unborn at the state level, featuring a gnarly entanglement of referenda, legislation, and state constitutional issues. (Compare to 2022’s Kansan referendum, a horrible involuted question that pulled in the state judiciary to boot.)
The failure of Issue 1 is striking. A 50 percent plus one referendum passage is, on the face of it, a lunatic method of amending a written constitution. It is a wonder that the people of Ohio do not live in a state of constant anarchy—one might say that it is a testament to their rare capacity for self-government. As said, Issue 1’s defeat is the initial step in an effort to allow continued legal predation on the unborn—that is to say, legal abortion is popular with Ohioans—but it is also a defense of voters’ constitutional power.
Which makes the Issue 1 decision all the more dispiriting, and shows what appear to be the characteristic weaknesses of the post-Dobbs pro-life movement. Roe was patently bad law, not to mention wicked, and I am glad it is gone. As is to be expected, given that the courts have handed the greatest victories to the cause of life since it became a national issue, the pro-life movement has developed an outlook relying on the courts for advancing its cause.
The repeated defeat of pro-life policy at the ballot box should prompt reflection. We have had 50 years. The country was sympathetic to us when we began. These results should be regarded as what they are: failures. We have failed to persuade the American people. Simply put: Lawyerly tricks (and tricky lawyers) are losers. Asking the commons to cede power voluntarily is a loser. Framing things in terms of curtailing rights in any respect is a loser. The pro-life movement has failed to instill a positive vision of its goals into the American people. It has accepted the pro-abortion framing of abortion laws as a curtailment of rights, rather than the protection of a class of persons that ought to be protected.
Every major change in American politics has been framed in terms of the expansion of rights (or the recognition of rights that were there all along, given our national ideology’s sort of fuzzy fundamental understanding of what a “right” is). The massive entitlement expansions—Social Security, Medicaid, Medicare, Obamacare—have been framed in terms of granting de facto rights to freedom from want, to health-care, or the like. The Reagan revolution and its sequel, perhaps the last era in which those entitlement programs faced a serious challenge, was built around the expansion of economic rights. (This was part of the wisdom of the first generation of fusionism, unfashionable as it is to say now.)
It has become clear that a Fourteenth Amendment ruling protecting unborn life is not forthcoming from the Supreme Court. The expectation that it would always smacked of fantasy—the Court is more addicted to following the particulars of American opinion even than our elected branches, and rarely hands down a broad ruling on a controversial issue. A judiciary, even a sympathetic judiciary, will not save us—and how long will the courts be sympathetic?
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The abolitionists waged a fearsome propaganda campaign arguing that full citizenship should be extended to slaves based on the merit of their humanity and their American birth. The famous print—“Am I not a man and a brother?”—transformed the Civil War into a crusade and sustained the Union public for its bloodiest years. The same kernel provided the ideological basis for Reconstruction and the civil rights movement. It put the fight on the ground of politics, rather than the ground of jurisprudence; after all, politics is the way the nation speaks to itself about itself.
The pro-life movement must do the same. It must articulate itself in terms of rights expansion—ideally, not just for the unborn baby, but for the voting public as well. We must speak to the nation about itself as a nation. This unfamiliar dialect does provide certain natural advantages. The possibility of demographic collapse threatens the health of entitlement programs, which depends on an expanding pool of payors. (Do you want to bet on per capita GDP increasing quickly enough to keep Social Security afloat?) The old conservative analyses of those programs’ solvency can be repurposed for the cause of population growth, a cause that has as a component restrictions on abortions. Existing entitlement programs give us another tool. The de facto right to healthcare can be extended to a right to free birth; such proposals already have some legislative traction. Finally, the most difficult and least concrete: We must be tireless in our arguments forwarding the humanity of the unborn. We must convince the American people that the unborn are Americans, too.
The hour is late, but all is not yet lost. We have been granted a little space to breathe—which is all that we can expect from the courts. It is up to us to take the cause to the American people and persuade them of its justice. If we fail on the field of political battle, minoritarian measures passed through courts or by constitutional chicanery will be impermanent and in the long run damaging to the movement, irrespective of the merits of those measures. The failure will be ours.