Published June 12, 2024
For the pro-life movement, it is the best of times and the worst of times. Roe v. Wade has been overturned and many states now have meaningful restrictions on abortion, but pro-lifers have lost a string of ballot measures, and Donald Trump is shoving us to the back of the GOP bus—when he’s not throwing us under it. As pro-lifers respond to the political challenges of life after Roe, we should remember the wisdom of the classic sci-fi novel Ender’s Game: the enemy’s gate is down.
The phrase was coined to orient combatants toward their objective in the confusion of a zero-gravity environment. It is repeated at crucial points in the story and has slipped into the lexicon—at least among the sort of people who read sci-fi novels—as a reminder to identify and pursue victory in the face of obstacles and distractions. Winning doesn’t always require slugging it out with the enemy; sometimes it can be had by bypassing a direct fight and exploiting a weakness. To quote another sci-fi classic: stay on target.
For pro-lifers, victory consists of curtailing, reducing, and ultimately ending elective abortions. The difficulty is that the American people are not with us. Polling on abortion is notoriously tricky, but it seems that most Americans favor abortion on demand, at least through the first trimester. And while there is more polling support for restricting abortions later in pregnancy, voters have, when put to the test, consistently chosen to allow them. Most voters have preferred abortion laws they theoretically find too permissive over those they see as overly restrictive. We might blame this on a deluge of deceptive pro-abortion advertising and media, but this is little comfort, because that type of misinformation is not going away.
In response to these defeats, some pro-lifers, such as my Ethics and Public Policy Center (EPPC) colleague Patrick Brown, have argued that we must retreat to much more modest, but perhaps more politically plausible, protections for human life in utero, while also doing more to economically support mothers and families. Others in the pro-life movement are determined not to cede ground, arguing that such strategic retreats are not only wrong but also self-defeating, because inconsistency will not persuade voters to value life in the womb. And looming over all of this is the unprincipled cowardice of many Republican officials and candidates on this issue. We cannot expect leadership to come from our politicians.
As pro-lifers wrestle with these problems, we ought to recall the lessons of our history, which has taught us that we can restrict abortion without banning it. During the reign of Roe, pro-lifers learned to restrict the supply side of abortion by regulating the abortion industry. Following Dobbs, which found that there is no constitutional right to abortion, it is not only possible to ban abortion outright; it is also easier to regulate the abortion industry, because those regulations are now subject to much less judicial scrutiny. Anthony Kennedy no longer gets the final say on every rule regulating an ostensible constitutional right to abortion.
Thus, we now have even more ways to restrict and shut down abortion clinics and chemical abortion pill mills, and pro-lifers should aggressively use these tactics in places where outright bans are not politically feasible. Abortionists still hate these so-called TRAP (Targeted Restrictions on Abortion Providers) laws, and the abortion industry may be especially vulnerable to regulation because abortion never became an ordinary part of health care. The standard clinical abortion is not between a woman and her doctor, but between a woman and a stranger she hopes never to see again. And online chemical abortion pill mills (and even apps that dispense them without a doctor) reduce or even eliminate this already minimal connection. This exclusion of abortion from normal medicine has produced an industry in which some abortion clinics and pill mills can be shut down simply by requiring them to adhere to basic medical standards or routine health and safety guidelines. Measures as simple as requiring abortionists to have admitting privileges at a local hospital can cripple abortion practices.
Corner-cutting negligence is to be expected from the notoriously greedy and sloppy abortion industry. However, such negligence gives pro-lifers additional tools to use against the abortion industry, insofar as much of the industry cannot survive under the standards governing ordinary medicine. Thus, pro-life leaders should be able to find ways to shrink the abortion industry through regulation when it is not yet possible to ban it outright.
Closing abortion clinics is good, but it is also essential to shut down the mail-order abortion pill networks that are being used to circumvent the laws of solidly pro-life states. Even if current legal efforts fail to force the FDA to follow its own rules and safety standards, which it has ignored when it comes to the abortion pill, there are many tools available to a future Republican administration. What the Biden administration has done, a GOP administration can undo, and restricting the reckless mail-order abortion pill scheme Biden has implemented will protect mothers and their unborn children. The dangers of chemical abortion drugs are exacerbated when they are given out without any in-person screening for contraindications, such as ectopic pregnancy. The same pro-abortion activists who falsely claim that restricting abortion will prevent treating ectopic pregnancies are implementing mail-order chemical abortion schemes that can kill women with ectopic pregnancies.
Fortunately, the legal tools to interdict mail-order abortion pill networks already exist, and now that Roe is gone they are ready and waiting for a Republican administration with the will to use them. Indeed, even the modest goal of returning abortion policy to the states requires action by the next Republican administration. As Rachel Morrison and Eric Kniffin (also both at EPPC) have explained, Democrats have sought to stack the federal regulatory deck in favor of abortion. Thus, there is regulatory and legal work for pro-lifers at both the state and federal levels.
In navigating politics after Dobbs, pro-lifers would be wise to use bans and regulations (including simple measures that end government funding for abortionists) to fight toward ending the evil of elective abortion. Winning is measured as much, if not more, in clinic closures and stopping mail-order abortion pill mills as it is in the strictness of laws.
Used wisely, regulation and litigation to restrict abortion will also mitigate the potential backlash from voters who support elective abortion but do not usually prioritize it when voting. In using these tactics, the pro-life movement has much to learn from environmentalists, who have been masterful at using regulations and litigation to advance their agenda, regardless of popular sentiments. From light bulbs to showerheads to watersheds, they have consistently used the legal and bureaucratic levers of power to enact their agenda and reshape American lives in ways that would never pass in a popular referendum. And people largely accept it—yes, there are online tutorials on how to remove the flow-restricting regulators from your new showerhead, but many people, probably most, don’t bother, and there is certainly no political pressure to roll back the regulations that require manufacturers to make underpowered showerheads.
Winning policy victories isn’t just about voter preferences, but also voter intensity. Regulating the abortion industry to death will be less noticed, and provoke less backlash, than direct bans. And it is easier to message. Likewise, though popular exceptions to abortion restrictions are unjust (it is not the child conceived by rape that needs killing), pro-lifers should spend their energy elsewhere for now. Shutting down the abortion industry does not require perfection from the law; Planned Parenthood cannot live on the blood of those conceived through rape and incest alone.
It will, of course, require prudence to know which approach to take at which time, but abortion bans and abortion regulations should be understood as complementary. The reality of politics is that successful movements have to balance principled leadership with not getting too far ahead of the decisive voters, who in this case are the many people who are uncomfortable with abortion but inclined to view it as a sometimes necessary evil. Outright bans are more likely to rile them than targeted regulations and clever lawsuits. And reducing abortion through regulation will ease the way for stricter restrictions as it becomes clear that the violence of abortion is not necessary to sustain society; indeed abortion only makes things worse.
In contrast, people who are complicit in abortion have a strong interest in denying its evil and defending its legality. And so reducing abortions by making abortion harder to get may also help make abortion less acceptable. The law is a teacher, and so is social experience. A society in which abortion is not only legal, but common and easily available, teaches people to regard it as not a big deal. In contrast, restricting abortion sends the message that it is, at the least, a serious matter.
Ending Roe was not the end of the war to protect human life in the womb; it was, in many ways, the beginning of the fight, as the pro-life movement was no longer constrained by a spurious constitutional right to abortion. But winning this struggle will be difficult and protracted. Some wins will be dramatic, some will be incremental. Sometimes we will need to maneuver, at other times to stand fast. Sometimes we will need to be direct, at other times oblique. The goal of ending elective abortion is unchanging, but the tactics to achieve this victory are variable. The enemy’s gate is down.
Nathanael Blake, Ph.D. is a Postdoctoral Fellow at the Ethics and Public Policy Center. His primary research interests are American political theory, Christian political thought, and the intersection of natural law and philosophical hermeneutics. His published scholarship has included work on Jean-Jacques Rousseau, Hans-Georg Gadamer, Alasdair MacIntyre, Russell Kirk and J.R.R. Tolkien. He is currently working on a study of Kierkegaard and labor. As a cultural observer and commentator, he is also fascinated at how our secularizing culture develops substitutes for the loss of religious symbols, meaning and order.
