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Like the Founders, or Kris Lindahl
I have an article out at Law & Liberty today that I’m quite pleased with. It’s an assessment of polls and polling culture in general in light of the election results, it’s called “Moneyball at the Ballot Box,” and it only goes uphill from there:
There’s a Star Trek episode where the Enterprise is being pulled toward destruction in a bizarre “zone of darkness,” where the laws of physics don’t apply. The zone has already killed the logical Vulcan crew of another starship.
Captain Kirk, desperate for options, asks Mr. Spock what the Vulcans might have tried. Spock shakes his head. The zone is too bizarre. Even as the Vulcans’ instruments showed them dying, Spock says, “Their logic would not have permitted them to believe they were being killed.”
Kirk asks, “And when they died, what do you think they felt?”
Spock raises one rueful eyebrow. “Astonishment.”
That’s what I imagine Republicans felt on Election Night 2022.
A red wave is coming, pundits said, and everyone believed. Republicans salivated, Democrats despaired, and pre-mortems went up on all the horse-race sites. Logically, it should have been a red wave. Midterms are good for the out-party. Inflation was up, presidential approval down, and voters were angry. Besides, didn’t you see those polls from Trafalgar, or the averages at RealClearPolitics? Whatever your party, it was impossible not to feel the vibes: A red wave is coming. Logic permitted nothing else.
A close look at our instruments, though, showed plenty of flashing warning lights.
They paid me nicely for this article, so I’d better not quote more. Special thanks to my editor, Rachel Lu. Read the whole thing.
I was also quoted at some length in an article by Sophie Feingold for the National Catholic Register, entitled, “Catholic Teaching on Health Care Is Part of God’s Gift of Love to the World.” This was based on an interview with her over the summer:
James Heaney, a pro-life blogger and advocate, suggested that one possible solution is for pro-life legislation to include a nonexclusive list of common life-threatening conditions.
“No doctor trusts any district attorney’s medical judgment about what is a serious threat to life,” Heaney said. “So as much immunity as you can give them from the district attorney in appropriate cases, that’s the line you should do. And, obviously, you shouldn’t limit it to that; you shouldn’t say, ‘These are the six cases and the only cases that are allowed.’ You should say, ‘the life of the mother, which may include — here’s a list of examples.’ And that at least gives you both a list of cases that are specifically excepted, and it gives both the doctors and the courts a better understanding of the legislative intent behind what ‘life’ means so they can cover those edge cases [where a pregnancy risk is not explicitly mentioned in the law] better and establish better precedents. … More clarity is good.”
Heaney pointed out that Ohio’s pro-life law already includes the usual language for medical exceptions (“life of the mother” and “serious risk of the substantial and irreversible impairment of a major bodily function”) and adds that these exceptions are automatically triggered by preeclampsia, inevitable abortion (when the cervix dilates during a miscarriage, but the miscarriage may be stalled) and premature rupture of the membranes.
Of course, crafting detailed exceptions may embroil pro-lifers in some bitter arguments about what counts as “serious impairment.” Before Dobbs, Heaney said, pro-life legislation was limited by the fact that “we haven’t had to have the arguments about what should actually count. Does retinopathy for diabetes count …? And [having these arguments] is going to be ugly, and that’s going to be politically costly; but I think that if, in the end, that saves women’s lives and children’s lives, we’re going to have to pay that price.”
Heaney also stressed that pro-life activists must proactively provide other help in “hard cases” where life-of-the-mother exceptions do not apply, such as the recent situation of the pregnant 10-year-old who could not receive an abortion under Ohio’s new pro-life law. Situations like hers, Heaney said, are difficult because, while it is politically unpopular to prohibit such abortions, “it’s also morally just, and it is currently also the law.” But such cases, Heaney argues, demand pro-life advocacy of comprehensive medical, financial and educational support for victims like the child in Ohio.
Heaney acknowledged that such support may be a tough sell in a society where many remain doubtful about the personhood of the unborn, especially in the early stages of pregnancy. He pointed out that while recognition of fetal personhood and 14th Amendment rights might be “the end goal,” not a single Supreme Court justice tipped a hat to the personhood argument that Robert George and John Finnis made in their Dobbs amicus brief.
Of course, there are other ways to build a culture of life. In addition to state-level legislation, Heaney points to a number of U.S. congressional acts — the Unborn Victims of Violence Act (2004), the Born-Alive Infant Protection Act (2002) and potential legislation like the Sanctity of Human Life Act and the Life at Conception Act, as well as the Graham Bill. A pro-life president could also recognize fetal personhood, for instance, Heaney suggested, by reinterpreting the 1940 tax case Wilson v. Commissioner of Internal Revenue, which currently prohibits claiming an unborn child as a dependent — although Georgia, for instance, allows such a claim at the state level. An executive reinterpretation of the decision would not end abortion, but it could, Heaney argued, be one of many steps toward helping people to think about the unborn as persons.
As Heaney puts it, “If one day we’re going to wake up and personhood is going to be here, it’s because a critical mass of states have made that move, and they’ve proved that it can work and that we can honor the rights of the mother and the child without harming either one.”
That’s the extent of my contribution, but the article is much larger than that, with lots of good stuff. Special thanks to my friend and genius Teresa Collett, although any bad ideas in that interview are mine alone. Read the whole thing here.
Finally, I was published sort of accidentally at National Review, in a short post entitled, “A Window into the NRPlus Community, Post-Election,” by the wonderful Kathryn Jean Lopez:
Every now and again I drop into the NRPlus Facebook group. It’s a community of good humor and wisdom and fellowship. It’s the kind of place you want to be on an election morning and any other day when you find yourself processing and thinking through next steps. With permission, I share one of the threads I saw yesterday, which reflect where we need to be post-Roe.
Considering that the pro-abortion side seems to have won in every state when the issue was on the ballot, maybe it’s time to switch our priorities from politicians to working on reducing the number of abortions by:
* addressing the reasons why women have abortions
* providing alternatives to abortion for women who want to keep their babies
* supporting CPCs with our time and money
* disentangling the issue of abortion from politics
* showing love to those who disagree with us on this issue
We spent decades overturning Roe and so we can spend decades if necessary to reduce the number of abortions in America to as low a number as possible by persuasion not coercion.
We can do both. We should do both. We must do both.
Slavery ended in part because of persuasion. But it also ended in large part because of coercion. Ending a great atrocity is almost always a both-and situation.
It is true that, after a difficult cycle, we need to regroup, consolidate in areas where we’ve successfully defended the unborn, and begin pointing to the horrors of abortion and the radicalism of the pro-choice agenda again. The pro-life movement, for having worked to end Roe for 50 years, was surprisingly unprepared for the end of Roe.
But we can’t just give up on the most pressing issue of our time, and any conservative movement that purports to do so wouldn’t be worth the effort.
The problem is that our views are in the minority and so that’s why you’re seeing the backlash to Dobbs. We’re perceived as trying to impose our religious views upon everyone else at a time when our credibility has been shredded by an ongoing series of scandals involving religious people and organizations. We risk becoming as irrelevant as the WCTU after prohibition.
Some of our views are in the minority. Others very clearly are not. Michigan’s amendment legalized abortion at *every moment of pregnancy*, for any reason, including for minors, *without parental knowledge or consent*. Some abortion is popular! *That* level of abortion, really clearly, emphatically, in every poll, is not.
We lost Michigan because of disorganization, flat-footedness, and because we were also trying to defend the 1931 abortion ban (which forced voters to choose between a full ban and a full allowance).
For thirty years, the pro-life movement has followed an incremental strategy. First, we make partial-birth abortion appalling and unthinkable. Then we ban it. Then we do the same to third-trimester abortion in general. Then we push for waiting periods, informed consent rules, and clinic regulations, all of them quite popular. Then we keep gradually confronting voters with the humanity of the child, pushing back the frontiers of protection until those babies are actually protected throughout their lives. That’s a successful strategy. It ended Roe. It’s banned abortion in a quarter of the country. It’s saved hundreds of thousands of lives since 1992. We would be insane — and immoral — to abandon it.
Given the availability of abortions at home, I have to wonder if those anti-abortion laws have worked as well as their proponents hoped.
I was more referring to Michael New’s research over the past many years showing that abortion restrictions in the states (even not outright bans) have had significant impacts on abortion.
There’s also very good evidence from Ireland under the 8th Amendment that, even after accounting for abortion tourism from Ireland to England (which is much cheaper and easier than flying from, say, Texas to California), Ireland had an *incredibly* low abortion rate under its abortion ban.
I agree with you on this: I don’t think the post-Dobbs abortion bans have been in place long enough for anyone to make much more than slightly educated guesses about the impact they’ve had overall. We’ll see in a few years. I’m optimistic.
In any event, it remains a practical and moral necessity to have a legal regime that protects the lives of the unborn. The 13th Amendment did not really *effectively* end slavery for almost a century, as Southern plantation owners just switched from legal slavery to debt slavery and prison slavery and had a ball for decades — but the 13th Amendment was an essential step along the road to slavery’s decimation. (Slavery still exists today, of course, despite many laws against it… as do rape, murder…. but it is much less a feature of daily life, thanks in part to laws against it.)
Politics is downstream from culture, but culture is downstream from politics as well. The stream is a circle. This metaphor is breaking down.
Become an NRPlus member here.
James Heaney has a Substack here.
The original article is here.
So, lots of good stuff from me to read today!
While I’ve been spreading my words around the web, here on the Substack homefront, I’ve been quiet for a few weeks. (That’s largely because I was writing a 2,000 word essay for Law and Liberty about elections! Read it, it’s good!) I’m writing three other articles simultaneously right now, but they’re all becoming surprisingly long, so we’ll see which one makes it to the finish line first. My next post will probably be a Worthy Reads.
Thanks for reading!
P.S. I should clarify that, in the subheadline of this article, I meant the Founders of the Dominion, not America’s Founding Fathers. I’m so deep in Star Trek brain rot that I didn’t notice the ambiguity.