Since the 2022 Dobbs decision and the wave of abortion bans that followed it, the pro-life movement has suffered defeat after defeat, but two events taking place this week could signal the turn of the tide.
In the months after the fall of Roe v. Wade, six states either enshrined abortion in their constitutions or rejected pro-life ballot measures. Voters are willing to elect anti-abortion politicians, but when the issue is considered in isolation, the pro-choice side has a clear advantage. So far, pro-lifers have been powerless to stop the cascade of abortion referendums.
But that might all change Tuesday, when Ohioans head to the polls to vote on Issue 1. At first glance, Issue 1 has nothing to do with abortion. If it passes, it will raise the threshold for passing a constitutional referendum from 50 percent to 60 percent and make it more difficult to get a proposed amendment on the ballot. (RELATED: A Special Election In Key Swing State Could Send Shock Waves Through The DNC)
The reason Issue 1’s success is crucial for the pro-life movement is that, in November, Ohio voters will consider another amendment that would establish a right to “make and carry out one’s own reproductive decisions.” The text claims to allow abortion restrictions post-viability, but it contains a vague maternal “health” exemption that would allow abortion up to birth for something as banal as anxiety.
Since first proposing the idea of Issue 1, I’ve been leading the charge to protect our constitution.
Now it’s up to you, Ohio. Join me in protecting our constitution by voting Yes on Issue 1 today! pic.twitter.com/7D6VAAettM
— Frank LaRose (@FrankLaRose) August 8, 2023
Critics have also pointed out that freedom to make “reproductive decisions” would apply not only to abortion, but also to child sex changes. Under the proposed amendment, any attempt to restrict potentially sterilizing cross-sex hormones for minors would be unconstitutional.
The abortion amendment is polling very well, with close to 60 percent in favor. If Issue 1 fails, there will be no way to stop it. A state whose duly elected representatives enacted a six-week abortion ban will be forced to accept the same anti-life extremism that governs California and New York.
Thankfully, Issue 1 has a real chance of passing. One poll from July found 42 percent in favor of the amendment, 41 percent opposed and 16 percent undecided. If Issue 1 succeeds, it will also provide a blueprint other red states can follow to protect the unborn within their borders.
Like Gandalf on the bridge of Khazad-dûm, Ohio voters have a chance to declare to the out-of-state interests pushing for unrestricted abortion, “You shall not pass!” and to banish their demonic ideology “back to the Shadow.”
The second major development this week is the trial of the Alexandria 10, a group of pro-life activists facing federal charges for invading and blockading an abortion clinic outside Washington, D.C.
(Two of the defendants, Lauren Handy and Herb Geraghty, are friends of mine, and I previously did some work with Handy’s organization, Progressive Anti-Abortion Uprising.)
The Department of Justice (DOJ) announced the charges in March, accusing Handy and the others of conspiring against civil rights and violating the 1994 Freedom to Access Clinic Entrances (FACE) Act. The charges carry a maximum sentence of 11 years in prison.
The FACE Act blunted a generation of pro-life activism. Before blocking an abortion clinic entrance became a federal felony, it was a primary tactic of the anti-abortion movement. Ordinary, churchgoing men and women would block doors on Friday, spend the night in jail, get bailed out on Saturday and show up to court a few months later to pay a small trespassing fine. These brave protesters, who descended on cities such as Buffalo and Wichita by the thousands, often faced mass arrests and police brutality. They could handle that and praise God for the privilege. A decade in prison away from their children was a much more powerful deterrent.
The DOJ is hoping to wield this law as a bludgeon against Handy and the others (and even sending FBI informants to spy on them), but there’s a good chance FACE will end up shattering in their hands. (RELATED: QUAY: You’re Not Paranoid, The FBI Is Out To Get You)
I’m not a lawyer, but here’s how Andrew Bath — an attorney with the Thomas More Society, which is handling the case pro bono — explained it to me:
The FACE Act rests on two constitutional pillars: the Fourteenth Amendment and the commerce clause. The first one no longer applies. The Dobbs decision overturned Roe v. Wade, declaring there never was a federal right to an abortion. And you can’t protect a right that doesn’t exist.
U.S. District Court Judge Colleen Kollar-Kotelly, however, refuses to concede this obvious point. Back in February, she argued with a straight face that, even though Roe is gone, a constitutional right to abortion might still exist under the 13th Amendment. In other words, she claimed being pregnant is LITERAL slavery.
So yeah, not much chance of Judge CoKoKo, whose beliefs are somehow even goofier than her name, presiding over anything resembling a fair trial. SCOTUS might be more amenable, especially considering Justice Samuel Alito wrote as clearly as possible in his Dobbs majority opinion that the “Constitution does not confer a right to abortion.”
Whether Congress’ right to regulate interstate commerce is sufficient to uphold the FACE Act is above my pay grade. Bath plans to argue that, if the Supreme Court sticks to its current interpretation of the commerce clause, they’ll have to strike it down.
Specifically, he pointed to National Federation of Independent Business v. Sebelius, a 2012 case challenging Obamacare. My understanding of that case is that Chief Justice John Roberts wrote for a 5-4 majority to uphold the Affordable Care Act (ACA) on the basis that the individual mandate penalty was a tax. He intentionally avoided justifying the ACA on the basis of the commerce clause, suggesting it does not confer the kind of broad federal police power that liberal justices such as Sonia Sotomayor envisioned.
If FACE is overturned, the pro-life movement will have real teeth in the fight against abortion. Many blue states have their own versions of the FACE Act, but in purple states — or even red ones like Iowa, where the courts have blocked abortion bans — this newly legal form of protest would offer a way of shutting down clinics without ever introducing a bill. (RELATED: Judge Orders Temporary Halt On Iowa Heartbeat Law After Lawsuit)
Wins at the Ohio ballot box and in federal court would reinvigorate the pro-life movement, both legislatively and in the realm of activism. Pray for victory. “Do thou, O Prince of the Heavenly Host, by the power of God, thrust into hell Satan and all evil spirits who wander through the world for the ruin of souls.”
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller.
This piece has been updated to more accurately reflect Andrew Bath’s statements.