Pro-Life Leaders and the Republican Platform Change
Jul 12, 2024 by David Fowler
The rank-and-file members of the pro-life community need someone to be honest with them about what remains in the Republican Party Platform addressed to abortion. There is a behind-the-scenes story about what some pro-life leaders and organizations are saying you need to know.
The provision in the new platform addressed specifically to abortion (other procreation-related aspects like IVF are omitted) is as follows:
Similar things were said by other pro-life leaders.
Putting This “Saving Grace” in Context: Tennessee’s 14th Amendment Life Legislation
In the spring of 2019, I testified in favor of a bill I had drafted for Tennessee state Senator Mark Pody called the Rule of Law Life Act. The text of the bill made the following specific declaration about the U.S. Supreme Court’s 14th amendment decisions restricting state abortion laws:
That summer, legal scholar Adam MacLeod and I testified in favor of the bill before the Senate Judiciary Committee.
The bill was filed again in 2020. You can find it here if you would like. It contained 24 pages of citations to Supreme Court opinions and legal authorities dating back to 1765 substantiating that statement.
What Was Critically Important About the Rule of Law Life Act
All pro-life leaders thought the Court’s jurisprudence on the subject was wrong, beginning with the Roe v. Wade in 1973, but this bill, unlike all other heartbeat and 15-week abortion bills then being enacted, gave this as the reason:
No other bill in the nation made such a clear attack on the Supreme Court’s failure to consider the meaning in law of the word “person” in its 14th Amendment abortion decisions. But the legal answer was clear, and it was spread out on those 24 pages for all to read: the unborn are persons as a matter of law.
The Response of the Pro-life Community to the Rule of Law Life Act
I spoke with or tried to speak with leaders of pretty much every national legal and policy advocacy organization that works on the issue of abortion. I sent many of them my book on the subject.
Only a few responded, but those who did said they did not want to risk putting this legal issue in front of the Supreme Court and risk Roe v. Wade being upheld. Two national organizations even sent lawyers to Tennessee to tell our legislators not to support the bill.
Of course, Roe being upheld would have merely left us with the status quo.
But the opposition of lawyers from these two national organizations made it easy for Governor Lee, Speaker McNally, and important Senators Mike Bell and Jon Lundberg, Chair and Vice Chair of the all-important Senate Judiciary Committee, to kill the Rule of Law Life Act. And they did.
Two Effects of Failing to Argue the Legal Meaning of the Word “Person”
Don’t get me wrong. I’m delighted that Roe was reversed, but the pro-life community still does not have and still needs an authoritative legal definition of the word “person” in the 14th Amendment.
For the reasons given above, I submit that we have not because we asked not. And as a result, two things are happening.
First, we are left fighting multiple pro-abortion ballot amendments in the states, and so far, the pro-life community has lost them all.
Second, Congress is free to ignore its power to enforce the protections in the 14th Amendment.
The Effect of This Rejection in Relation to the New Platform
The 14th Amendment begins with “No state shall,” and if the Court had been asked to hold that our legal history establishes the unborn as person in law, and it had done so, the 14th Amendment would effectively say, “No state shall have laws allowing the killing of the unborn.”
Of course, some states would violate the 14th Amendment and allow the unborn to be killed, but having such a ruling in hand would mean two things.
First, it would have allowed state leaders to argue their state’s abortion laws violate the 14th Amendment, which they can’t do now as they go down to defeat on ballot measures.
Second, and perhaps more importantly, it would have meant that Congress was on the spot to enforce the amendment, prohibit state abortion laws and constitutional amendments, and stop the murder of the unborn in the states.
Instead, pro-life leaders must now convince state legislators in blue states and members of Congress to decide the constitutional meaning of the word “person” for themselves.
Good luck with that! Politicians are known for the courageous leadership, right?
Holding the Pro-Life Leadership Accountable
Some leaders in the pro-life community, including those in Congress and the Republican Party, are telling you that the Platform is okay on abortion because it refers to the 14th Amendment.
But, in my opinion, they need to tell you why they would not make a 14th Amendment argument to the United States Supreme Court about the legal meaning of the word “person” in that amendment when they had the chance.
In my opinion, fear of Roe not being reversed if that legal question had been presented through something like the Rule of Law Life Act is not a good reason for not trying.
If you ask and get an answer other than “It was too risky,” let me know. I’d like to know, too.
The provision in the new platform addressed specifically to abortion (other procreation-related aspects like IVF are omitted) is as follows:
We believe that the 14th Amendment to the Constitution of the United States guarantees that no person can be denied Life or Liberty without Due Process, and that the States are, therefore, free to pass Laws protecting those Rights. After 51 years, because of us, that power has been given to the States and to a vote of the People. We will oppose Late Term Abortion . . . .
Leaving aside for a moment the matter of late term abortions, the statement about the 14th Amendment is constitutionally sound and correct, as far as it goes. That’s why many pro-life leaders have pointed to it as a saving grace. For example, the president of one national organization said:It is important that the G.O.P. reaffirmed its commitment to protect unborn life today through the 14th Amendment. Under this amendment it is Congress that enacts and enforces its provisions. (emphasis supplied)
Similar things were said by other pro-life leaders.
Putting This “Saving Grace” in Context: Tennessee’s 14th Amendment Life Legislation
In the spring of 2019, I testified in favor of a bill I had drafted for Tennessee state Senator Mark Pody called the Rule of Law Life Act. The text of the bill made the following specific declaration about the U.S. Supreme Court’s 14th amendment decisions restricting state abortion laws:
[I]ts 14th Amendment jurisprudence regarding the unborn as non-persons under the 14th Amendment for the singular purpose of allowing a third party to take the unborn child’s life is, in law and fact, wrong.
That summer, legal scholar Adam MacLeod and I testified in favor of the bill before the Senate Judiciary Committee.
The bill was filed again in 2020. You can find it here if you would like. It contained 24 pages of citations to Supreme Court opinions and legal authorities dating back to 1765 substantiating that statement.
What Was Critically Important About the Rule of Law Life Act
All pro-life leaders thought the Court’s jurisprudence on the subject was wrong, beginning with the Roe v. Wade in 1973, but this bill, unlike all other heartbeat and 15-week abortion bills then being enacted, gave this as the reason:
the right to life is enjoyed by all natural persons, which includes unborn human beings, the aged, and infirm; and the fourteenth amendment did not abrogate the powers of the people and states reserved by the ninth amendment [to secure that right].
No other bill in the nation made such a clear attack on the Supreme Court’s failure to consider the meaning in law of the word “person” in its 14th Amendment abortion decisions. But the legal answer was clear, and it was spread out on those 24 pages for all to read: the unborn are persons as a matter of law.
The Response of the Pro-life Community to the Rule of Law Life Act
I spoke with or tried to speak with leaders of pretty much every national legal and policy advocacy organization that works on the issue of abortion. I sent many of them my book on the subject.
Only a few responded, but those who did said they did not want to risk putting this legal issue in front of the Supreme Court and risk Roe v. Wade being upheld. Two national organizations even sent lawyers to Tennessee to tell our legislators not to support the bill.
Of course, Roe being upheld would have merely left us with the status quo.
But the opposition of lawyers from these two national organizations made it easy for Governor Lee, Speaker McNally, and important Senators Mike Bell and Jon Lundberg, Chair and Vice Chair of the all-important Senate Judiciary Committee, to kill the Rule of Law Life Act. And they did.
Two Effects of Failing to Argue the Legal Meaning of the Word “Person”
Don’t get me wrong. I’m delighted that Roe was reversed, but the pro-life community still does not have and still needs an authoritative legal definition of the word “person” in the 14th Amendment.
For the reasons given above, I submit that we have not because we asked not. And as a result, two things are happening.
First, we are left fighting multiple pro-abortion ballot amendments in the states, and so far, the pro-life community has lost them all.
Second, Congress is free to ignore its power to enforce the protections in the 14th Amendment.
The Effect of This Rejection in Relation to the New Platform
The 14th Amendment begins with “No state shall,” and if the Court had been asked to hold that our legal history establishes the unborn as person in law, and it had done so, the 14th Amendment would effectively say, “No state shall have laws allowing the killing of the unborn.”
Of course, some states would violate the 14th Amendment and allow the unborn to be killed, but having such a ruling in hand would mean two things.
First, it would have allowed state leaders to argue their state’s abortion laws violate the 14th Amendment, which they can’t do now as they go down to defeat on ballot measures.
Second, and perhaps more importantly, it would have meant that Congress was on the spot to enforce the amendment, prohibit state abortion laws and constitutional amendments, and stop the murder of the unborn in the states.
Instead, pro-life leaders must now convince state legislators in blue states and members of Congress to decide the constitutional meaning of the word “person” for themselves.
Good luck with that! Politicians are known for the courageous leadership, right?
Holding the Pro-Life Leadership Accountable
Some leaders in the pro-life community, including those in Congress and the Republican Party, are telling you that the Platform is okay on abortion because it refers to the 14th Amendment.
But, in my opinion, they need to tell you why they would not make a 14th Amendment argument to the United States Supreme Court about the legal meaning of the word “person” in that amendment when they had the chance.
In my opinion, fear of Roe not being reversed if that legal question had been presented through something like the Rule of Law Life Act is not a good reason for not trying.
If you ask and get an answer other than “It was too risky,” let me know. I’d like to know, too.
