After Dobbs, should pro-lifers seek a national law or win state by state?

Imagine winning a fifty-year argument and discovering that the victory party immediately splits into two committees, each convinced the other has lost its nerve. That is roughly where the pro-life movement found itself on June 24, 2022. The Court had said abortion is not a constitutional right. Now what?

Here is the honest state of play. Conservatives who agree on the goal, protecting unborn children in law, disagree about the route. One camp says leave it to the states and win the argument in fifty legislatures. The other says a right to life that stops at a state line is not much of a right, and Congress should act. Both camps have serious people and serious arguments. I want to give each its due and then tell you which one I think is right.

The terms

Let me define what we are arguing about, because the fight is usually conducted in slogans.

• Federalism here means that the Constitution divides power between the national government and the states, and that matters not given to Washington stay with the states or the people, as the Tenth Amendment says.
• A national law means a federal statute that regulates or prohibits abortion across the country, for example a limit on abortion after a certain week of pregnancy.
• The personhood argument is the claim that the unborn child is a "person" under the Fourteenth Amendment, so that states are already forbidden to deny him the equal protection of the laws and Congress may enforce that guarantee.
• Enumerated powers are the list of things Congress may do, set out chiefly in Article I, Section 8. Everything outside that list requires another source of authority.

Now the argument.

What Dobbs did and did not decide

Dobbs v. Jackson Women's Health Organization held that the Constitution does not confer a right to abortion and returned the question to "the people and their elected representatives." Justice Kavanaugh, concurring, put it in a sentence worth remembering: the Constitution is neutral. It neither outlaws abortion nor guarantees a right to it. Those are the words of the Court's own concurrence, and they matter, because they tell us the Court did not say the question belongs only to the states. It said the question belongs to the political process. The political process includes Congress, to the extent Congress has an enumerated power to act.

So the Dobbs decision does not settle the federal-versus-state question. It opens it. And it opens it on the same terrain as every other fight over federal power: what does the Constitution authorize Washington to do?

The case for leaving it to the states

Let me make the federalist argument at its best.

1. The Constitution's design favors state authority over the general police power. Federalist 45 states the Founders' own understanding: "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite." Criminal law and the regulation of medicine have been the states' business since the Founding. Few and Defined, the Promise About Federal Power in Madison's Federalist 45 reads that passage closely.
2. A federal statute needs an enumerated power, and the candidates are weak. More on that below.
3. States can fit the law to the people. Justice Brandeis, in a 1932 dissent, wrote that "a single courageous state may, if its citizens choose, serve as a laboratory" for social and economic experiments. A state-by-state approach lets different communities try different protections, support for mothers, adoption incentives, and limits, and lets the rest of us see which work.
4. Persuasion is slower but more durable. A federal law won by 51 votes in the Senate, if it could be won at all, would be repealed by the next majority. A norm built in the culture and in state constitutions is harder to dislodge.
5. Consistency. Conservatives spent decades arguing that the Court should not manufacture a national rule on the most divisive question in American life. It would be odd to respond by manufacturing one in Congress.

This is a strong case, and it has the added virtue of being the one the Court's logic invites.

The case for a national law

Now the other side, stated as its defenders would state it.

1. Rights should not depend on geography. If the unborn child is a human being with a claim to life, a line on the map should not decide whether the law protects him. We do not leave the protection of born children to the preference of each state. A national floor, the argument goes, is a moral requirement.
2. The Fourteenth Amendment may supply the power. Section 1 says no State shall "deprive any person of life, liberty, or property, without due process of law." Section 5 gives Congress the "power to enforce, by appropriate legislation, the provisions of this article." Scholars such as John Finnis have argued that the unborn child is a person within the meaning of the amendment, so that Congress may legislate to protect him just as it legislated against private and state denial of civil rights in the Reconstruction era. I laid out how that history frames the question in Dred Scott, Roe and the danger of a Court deciding who counts as a person.
3. The other side will nationalize it. If conservatives leave Washington alone, progressives will not. A future Congress with a different majority could pass a national statute protecting abortion rights, and some bills to do that have been introduced. Unilateral federalism, in this view, is unilateral disarmament.
4. Some federal interstate action is plainly within Congress's reach. Abortion pills, clinics near borders, and transport across state lines raise questions that individual states cannot resolve alone.

The fourth point is the most practical, and I will return to it.

The limits of enumerated power

Here is where the argument becomes legal rather than moral. Suppose Congress wants to pass a national gestational limit. Where does it find the power?

The Commerce Clause. Article I, Section 8 gives Congress power to regulate commerce "among the several states." A law banning abortion everywhere would have to rest on the claim that abortion is commerce, or substantially affects it. The Court has put a fence around that theory. In United States v. Lopez (1995) the Court struck down a federal law banning guns near schools, and in United States v. Morrison (2000) it struck down part of the Violence Against Women Act, both times refusing to let the commerce power swallow general police authority. A national abortion statute would invite the same challenge. The conservative who cheers those decisions, and I do, has to ask whether the same limits bind a law he likes. United States v. Lopez Was the First Commerce Clause Limit Since the New Deal explains the first of those cases.

It is only fair to add that Congress has done something here. In 2003 it passed the Partial-Birth Abortion Ban Act, and in Gonzales v. Carhart (2007) the Court upheld it. But that decision turned on the question whether the ban violated abortion rights under Casey, not on a full test of Congress's power to enact it. Those who claim it settles the enumerated-powers question are claiming more than the decision gives them.

Section 5 of the Fourteenth Amendment. This is the stronger route, but it comes with two problems. First, Section 5 enforces rights the Fourteenth Amendment actually secures. If the Court has not held that the unborn child is a person under Section 1, Congress's power to enforce on his behalf is uncertain, and in City of Boerne v. Flores (1997) the Court held that Congress may not use Section 5 to redefine the substance of the guarantee, only to enforce it with measures "congruent and proportional" to a real violation. So the personhood argument must first persuade a majority of the Court, or be placed in the Constitution by amendment. Second, the personhood theory, even if correct, is a claim that the Court has not yet accepted, and Dobbs expressly did not decide it.

The spending power. Congress can attach conditions to federal money, as it has done through the Hyde Amendment, first enacted in 1976, which bars most federal funding of abortion. That is a real, lawful limit on the federal government's own participation. It is not a ban.

The summary is simple. Congress has real power over what the federal government pays for and over some interstate matters. Its power to impose a blanket national rule is contested, and the contest is serious.

Federal proposals on the record

Let me stay with what actually happened in Congress, because speculation is cheap.

The Pain-Capable Unborn Child Protection Act, which would limit abortion after twenty weeks of fetal age, passed the House of Representatives in 2013, 2015 and 2017. In January 2018 the Senate took a vote on a motion to end debate. The vote, on ending debate on the motion to proceed, was 51 in favor and 46 against, short of the 60 needed to break a filibuster, so the bill went no further. In September 2022, after Dobbs, a proposal to set a national limit at fifteen weeks was introduced in the Senate, and the Senate Republican leader said it did not reflect the views of most Senate Republicans. Neither became law.

Look at the structure of those events. The proposals did not fail because the movement lacked conviction. They failed on arithmetic: the Senate's 60-vote threshold, the House's thin margins, and a public that holds a range of views. Whatever you think of the merits, a federal statute requires a durable national majority, and the movement has not had one. That is a fact about politics, not about principle.

Weighing the two arguments

Now let me say what I think, in numbered premises, since that is how arguments should be made.

1. The moral claim is the same in both camps: unborn children deserve the law's protection. We are arguing about means.
2. The means must be constitutional, or we are doing to Congress what we condemned the Court for doing to the states.
3. On the current state of the law, Congress's power to impose a blanket national rule is doubtful on the Commerce Clause and unproven on Section 5.
4. Section 5 can become a real source of power only if a majority of the Court, or the Constitution's text through amendment, recognizes the unborn child as a person.
5. Therefore the order of operations matters: persuade first, legislate second.

I will state my verdict plainly. Win state by state now, build the personhood case in the courts and the culture, and support federal measures that are squarely within Congress's powers, such as limits on federal funding and regulation of interstate matters. A national statute is a legitimate goal, but one that must be earned through the Constitution's own routes, including an amendment if necessary under Article V, rather than through an aggressive reading of the commerce power that conservatives would reject in any other context.

That verdict is not a compromise to keep the peace. It follows from a principle conservatives claim to hold. We say that the Constitution means what it says, that the national government has only the powers it is given, and that the way to change the law is to win. A conservative should be willing to apply that principle even when it slows down a cause he loves.

The strongest objections to my verdict

The first objection says I am telling people to wait while children die. That is the most serious charge, and I will not brush it off. But the verdict does not say wait. It says act now, in fifty states, which is where the law has the clearest authority to act. States can and do regulate abortion within their borders. Every legislative session is an opportunity. And a durable law protects more children over time than an overreaching one that a court strikes down in two years.

The second objection says that the other side will not respect federalism, so we should not either. The answer is that two wrongs do not make a constitutional power. If a future Congress passes a national abortion-rights statute under a stretched reading of the Commerce Clause, the right response is to challenge it in court under the same limits we are defending now. A principle that binds only your opponents is a tactic.

The third objection says I have ignored the practical case: pills by mail, cross-border travel, the sheer mobility of modern life. Here I concede the point. Interstate matters are a legitimate subject of federal action, and Congress may be able to regulate the shipment of certain drugs across state lines under its commerce power in a way a general abortion ban could not. That is a narrower claim than a national ban, and it is the kind of targeted measure the Constitution's text can support. How far it extends is a legal question that deserves careful drafting, not slogans.

What each side owes the other

Last, a word on tone, because the movement's internal quarrel can turn ugly. The federalist is not a coward. He believes in the Constitution the Court has just reaffirmed, and he knows that winning at the ballot box is the only durable victory. The nationalist is not a tyrant. He believes the child's right to life should not depend on a zip code, and that is a moral instinct as old as the Declaration. Each should assume the other is acting in good faith, because on the evidence of the record, both are.

If you want the history that shaped the whole debate, Fifty years from Roe to Dobbs in twenty dated turns of the law walks through the rulings from 1973 to 2022. And if you want to see how your own member of Congress has voted, use the representatives page.

The case in brief

1. Dobbs returned abortion to the political process, which includes Congress where Congress has an enumerated power, so it did not settle the federal-versus-state question.
2. The federalist case rests on Federalist 45, state police powers, experimentation and durability, and the nationalist case rests on equal protection, geography and the fear that the other side will nationalize.
3. Congress's power for a blanket national law is doubtful under the Commerce Clause after Lopez and Morrison, and the Section 5 route depends on a personhood holding that the Court has not made.
4. Federal bills have failed on Senate arithmetic, for example the 51 to 46 vote in January 2018, which shows the need for a durable national majority.
5. The best course is to win state by state, make the personhood case in the courts and culture, and use Congress's clear powers, with an amendment as the honest path to a national rule.

What you can do: write your state legislators this month and ask where they stand on specific bills, then look up your representative's votes on the Congress pages and ask them in writing which enumerated power they rely on when they support or oppose a federal measure.