The pro-life movement died on Monday, July 9, 2018, just after 9 p.m. ET, when President Trump officially announced the Federalist Society-approved Judge Brett Kavanaugh as his choice to replace the retiring Justice Anthony Kennedy on the Supreme Court.
I have neither the right nor the desire to bury the movement myself. I am even willing to praise it, after a fashion. But what I would really like to do is to have a frank conversation with its members, among whom I have never been sure whether I should be counted.
For two generations every American who opposes abortion has known what he or she is supposed to do: Support the Republican candidate for president, no matter how mealy-mouthed his commitment to the unborn, without regard to the rest of his platform. Abortion opponents must do this because if elected, and assuming there is a vacancy, a Republican president may appoint justices to the Supreme Court who subscribe to a bizarre jury-rigged philosophy of constitutional interpretation, the logical concomitants of which, we have been told, are favorable to the cause. Treat this judicial body, most of whose business is dry interpretation of vague statutes in cases involving the application of few if any discernible general principles, as if it were a kind of miniature Senate — but make a point of telling people that you believe it exists simply to uphold the law (whose?), not to "make" it. Immure yourself in double-think; recognize that when a law of which you disapprove is struck down, the result is simply a faithful application of genuine constitutional principles; when a judgment you abhor is handed down by the same body, restrain the urge to decry it as immoral and content yourself to lament the unfortunate existence of a phenomenon known as "judicial overreach." Do all of these things over and over again, paying no attention to the other consequences of your actions, until eventually the number of approved persons wearing robes at 1 First St. NE reaches five or more.
What was supposed to happen next? The secret, which you probably guessed but which you told yourself over and over again to ignore because the eventual day of reckoning seemed so far off, is that the leaders of the Republican Party these 20 years have not desired that there should be a "next." The moment when finally it was time to seize upon a case — of which any number could be made to purpose overnight if a red-state legislature decided to ban or otherwise severely restrict abortion — and banish Roe v. Wade and Casey v. Planned Parenthood and all their works and pomps to the outer darkness was meant never to arrive. If it did there would be no earthly reason for most of you to support this party, at least not in the same way in which so many of you have been accustomed to do; provisionally, tactically, under the right set of circumstances, you and they might do business (to put it in their lingo), but from thence forth your allegiance could not be counted upon. It would have to be earned.
Will this contingency, alternately dreaded and prayed for but always somehow impossibly remote, arrive anyway? It is difficult to say at this early juncture. But it is clear that one way or another the long period of movement activity in the sense in which it has long been understood is over. Either the gambit has succeeded and future Justice Kavanaugh and his coevals will one day accomplish that high purpose for which you were led to believe they had been appointed — or all your energy will have been misspent.
This second possibility is one worth considering. What would it mean if, in two years, say, the Supreme Court were to rule 6-3 in favor of striking down a law prohibiting abortion in the state of Missouri? Suppose Chief Justice John Roberts wrote the majority opinion, explaining in the impeccable legalese suitable to one of his class that the legislature of that state had overstepped its constitutional mandate. What would you do? Would you sigh along with the press release from the heads of the usual nonprofit groups and tell yourself that if only you vote in November 2020 for President Trump there might be a chance for him to appoint yet another justice who, under the right circumstances, might one day be part of a new judicial coalition that will give you a better result? Probably many of you will, for reasons both noble and ignoble, go on. Money, which is never hard to come by in politics, will not be wanting for you to rent offices, hire staff, issue communications — any activity except a formal acknowledgement of defeat. But others of you will not. You will be finally disillusioned. And then what? Time for the magic fire music.
What you must see, should you come to accept that you have been the dupes of sophists, economists, and calculators, is that the cause of the unborn has not, in fact, suffered an irreversible defeat. Yours is a fight that can never be lost because it is one for which victories are won every time a mother hears the first unmistakable cry of a child whom she has conceived and carried and will love, God willing, for the rest of her life. It is even possible that something else will rise up to take the place of the old movement, whatever becomes of Roe. But you must take care that the fate of any such movement will not be bound up in the flourishing of a party or of an intellectual or quasi-intellectual project or a boutique hermeneutical method. It must no longer be necessary to affirm that there is any necessary or even meaningful connection between the inherent metaphysical dignity of the human person and lower taxes.
It would be unfair not to mention that your unanimous support for Judge Amy Coney Barrett was something beautiful. It was the last flowering of your movement, one that showed it at its noblest, not least because for the most part it made no bones about being about anything but the cause itself, not its various epiphenomena or meaningless accoutrements, but for once simply the cause and the worthiness of the woman you hoped might be chosen for its advancement. She and you were betrayed by the politicians and the organizations and the experts and hangers-on in whom you had placed your trust. You must never trust them again. Nor must you ever shrink before those hoary sentences proclaiming "Congress shall make no law" and "All persons born and naturalized" and imagine that your duty is to that moth-eaten document that once also proclaimed "three Fifths of all other persons," rather than to the letter of that law written in our hearts, known and read of all men.