The Constitution and Human Life

Edward Whelan has an interesting article on National Review Online today, in which he declares John Roberts an 'abortion moderate' as regards the constitution.

Now, before anyone starts shouting, it's interesting to see what Whelan defines as the three possible positions on the abortion vs. pro-life debate as regards the constitution:

1. The pro-abortion position. The first position is that the Constitution prohibits, to one degree or another, laws that protect the life of an unborn human being against her mother's desire to have her killed....

2. The pro-life position. A second position is that the Constitution prohibits, to one degree or another, laws that permit abortion. Under this "pro-life" position, unborn human beings would be recognized as "persons" for purposes of the Due Process Clause....

3. The substantively neutral position. The third position is that the Constitution generally does not speak to the question of abortion. Under this substantively neutral position, American citizens would have the constitutional power to determine through their state representatives what the abortion policy in their own states would be. This neutral position (which three members of the current Court, Rehnquist, Scalia, and Thomas, embrace) also happens to be the proper reading of the Constitution (as I explain more fully here)....

This presents an interesting dilemma for me, and for pro-lifers in general. On the one hand, it seems like the strongest position would be to hold that the constitution protects unborn human life. However (as seen in our own current attempt to overturn Roe and as has been seen in the historical effort that succeeded in overturning the Dred Scott decision) unwritten protections are worth the paper they are printed on.

I think the 'moderate' position that the constitution does not speak to the issue presents us with our best starting point. If we can win that battle, and strike down Roe, we will then be faced with a long series of state-by-state abortion regulation battles. We'll lose some states (most of New England, the West Coast, possibly parts of the northern Mid-West) but in the process we'll also permanently capture other states throughout the south and midwest, and gain a lot of expience in writing good pro-life legislation that works and can gain enough support to pass.

In the long term, assuming that the tide continues to flow in a pro-life direction over the next fifty years (more on that soon) the goal should be a human life amendment. Amendment really is the only reliable form of constitutional protection for unborn life. Looking at history, after the civil war we passed amendments banning slavery and (at least on paper) protecting the rights of all Americans. Had we simply read a slavery ban into the existing text of the constitution, it could have been rolled back simply by shifting the balance of opinion on the court.

The pro-life position described by Whelan may be more satisfying in the short term, but in the long term, the long hard road outlined by the 'moderate' option is probably the best one to take.