The Rise & Fall of the Human Life Amendment

On June 24, 2022, the dream pro-lifers had spent decades waiting for finally became a reality when the U.S. Supreme Court, in its Dobbs v. Jackson decision, declared that there is no right to abortion in the U.S. Constitution. After so many false starts and failures, it almost seemed unreal. Yet, for all the fearmongering by pro-abortion media outlets about what President Donald Trump’s appointees, Amy Coney Barrett, Neil Gorsuch, and Brett Kavanaugh, would unleash on the nation — the New Republic, for instance, ran an article titled “Originalism Is Dead. Long Live Catholic Natural Law,” featuring an illustration of Barrett dressed up as the pope — there was little that was new in the justices’ opinions. They repeated the same arguments from the dual dissents of Associate Justices Byron White and William Rehnquist in Roe v. Wade (1973) that there is nothing in the language, history, or traditions of the United States to suggest that the 14th Amendment prohibits a state from outlawing abortion. All five of the justices who voted to overturn Roe emphasized that the Constitution is “neutral” on abortion, and states are free to decide for themselves whether to allow or forbid it.

None of these justices suggested that abortion is unconstitutional. That they did not do so is hardly surprising. For decades, the standard procedure for pro-lifers was to push for the appointment of enough justices to overturn Roe, send the issue back to the states, and work from there. The two titans of conservative jurisprudence in American law, Antonin Scalia and Robert Bork, both rejected the idea of ruling abortion to be unconstitutional, with Scalia, considered a champion of life, saying in an interview:

There are anti-abortion people who think that the Constitution requires a state to prohibit abortion. They say that the Equal Protection Clause [i.e., the 14th Amendment] requires that you treat a helpless human being that’s still in the womb the way you treat other human beings. I think that’s wrong. I think when the Constitution says that persons are entitled to equal protection of the laws, I think it clearly means walking-around persons.

Though hailed as a victory for the pro-life movement, it is more accurate to say that Dobbs was the triumph of the “states’ rights” approach to abortion, an approach that never had the consensus backing of the movement. In July 1973 the National Right to Life Committee condemned a proposed State’s Rights Amendment (SRA) and instead endorsed a Human Life Amendment (HLA), which would apply to all people from conception. And in 1974 Humberto Cardinal Medeiros of Boston testified before the U.S. Congress, saying that “a ‘states rights’ amendment does not seem to be a satisfactory solution to the existing situation. Protection of human life should not depend on geographical boundaries. The Supreme Court’s action itself [i.e., passing Roe v. Wade] has made abortion a federal question.”

The following year, Triumph magazine (Jan. 1975) asked a group of pro-life leaders whether, in the wake of the failure of Congress to pass the HLA, it would be better to work instead on passing the SRA. Of the eight respondents, only one supported it — and halfheartedly — on the basis that it would save at least some lives. That most did not support it is unsurprising. What is surprising is the vehemence with which they rejected the states’ rights approach, calling it “unacceptable,” “useless,” and “unworthy” of support. One dismissed the concept as “geographic roulette.” Other objections included:

•  Michael Schwartz’s arguing that it was no different than saying abortion should be allowed only during business hours, Monday through Friday.
•  Warren Carroll’s explaining that getting any amendment through Congress was unlikely, especially in the face of “the passionate and well-financed baby-killing lobby.” Abandoning the “principled stand” of the HLA in favor of the SRA would only ruin the pro-life movement’s moral credibility.
•  Charles Rice’s deriding the idea of compromising with anti-life forces. He argued that the SRA might increase abortion rates as it would serve to constitutionalize abortion in the states (this very thing occurred in Kansas in 2019). The pro-life response to the SRA should be, he said, “To Hell with it.”
•  William Devlin’s providing perhaps the strongest rationale against the SRA, saying it would “inscribe in the Constitution an unacceptable indifference, in principle, to an inviolable human right.” Even more “disturbing,” he said, is “the realization that the suggested amendment strategy requires not only our acquiescence in an enterprise beyond our capacity to control, but our involvement as architects and promoters of the amendment itself.” In supporting the SRA, “we tacitly concede that the right of an innocent human being to live is properly dependent upon the right of a state to enact protective legislation.”

Another striking aspect of the Triumph symposium was the different party affiliations of the respondents. Carroll cut his teeth working for far-right Republican (and 1972 American Independent Party presidential candidate) John Schmitz. Rice was a founder of the Conservative Party of New York. Paul Fisher was a legislative aide to Democratic Rep. James J. Delaney of New York. Schwartz worked for Democratic Pennsylvania State Rep. Martin Mullen when he ran unsuccessfully for governor in 1974.

As historian Daniel K. Williams explains in his brilliant history Defenders of the Unborn: The Pro-Life Movement before Roe v. Wade (2016), the natural home for pro-lifers had been the Democratic Party, with its de-facto Christian Democracy and base of socially conservative, blue-collar Catholics. Some human-rights activists saw their opposition to abortion as a continuation of their campaigns against racism, poverty, and war. In contrast, Republicans, be they Nelson Rockefeller liberals or Barry Goldwater conservatives, viewed abortion through the lens of individual liberty or as a method for population control. Of course, there is no denying that there were exceptions in both parties.

By the end of 1972, pro-lifers had reason to be hopeful. In Michigan, pro-lifers led by State Rep. Rosetta Ferguson, the first black woman elected to the state legislature and a proud Democrat, enjoyed a landslide victory over a measure to legalize abortion in the state. The same occurred in South Dakota. In the presidential election, pro-lifers were able to push President Richard Nixon and his challenger, Sen. George McGovern, into more pro-life positions. McGovern’s two running mates, Thomas Eagleton and Sargent Shriver, were pro-life. In New York, pro-lifers were one vote short of overturning Gov. Rockefeller’s veto of a bill that would have overturned the state’s liberal abortion laws. Everything pointed to the movement’s success.

Then, like a tidal wave, the Supreme Court washed away all those gains in January 1973 with Roe. Though it seems remarkably naïve now, many pro-lifers thought the court would side with them and declare abortion unconstitutional. Given the increased focus on human rights and human dignity across the country, it seemed clear that the court would agree that the unborn were just as deserving of protection as other classes of minorities. There was reason to think that the progressive philosophy of the “living Constitution” would serve this end. Such an idea would find legal expression in the 1974 West German Constitutional Court ruling that found abortion in contradiction to the protection of human life enshrined in the Basic Laws of the Republic, with the right to life applying to the unborn as well. Instead, the worst possible outcome occurred, and a new national push had to be made.

Calls for an HLA had been growing in the years before Roe. The court’s decision pushed the cause into overdrive. Using the amendment process to overturn a decision by the court was hardly unprecedented, with Congress having done so in cases of jurisdiction, citizenship, income tax, and voting age. For pro-lifers, this was just another instance in which the court must be corrected.

In January 1973 Rep. Lawrence Hogan (R-MD) introduced the first HLA. Sen. James L. Buckley (C-NY) and Rep. James A. Burke (D-MA) soon followed suit. Though most national politicians did not want to touch the issue, Birch Bayh (D-IN), chair of the Senate Judiciary Committee, held a hearing on Buckley’s amendment in the spring of 1974. Despite Buckley’s reputation as conservative, his amendment was supported by liberal senators Mark Hatfield (R-OR) and Harold Hughes (D-IA). The three Republican senators on the subcommittee, Hiram Fong (HI), Roman Hruska (NE), and Marlow Cook (KY), were decidedly lukewarm on abortion.

The inverted nature of abortion politics of the time might surprise many today. Pro-lifers were outraged in 1974 when Republican President Gerald Ford announced Rockefeller as his vice president, as he was known as the single most influential abortion advocate in public life. On the other hand, the National Organization for Women considered Ted Kennedy, a Democrat, one of their greatest foes due to his opposition to abortion.

On the first day of the hearings, six members of Congress, three for each side, testified. For pro-lifers, it was Buckley, Sen. Jesse Helms (R-NC), and Rep. John Zwach (R-MN). For pro-aborts, it was Rep. Donald Fraser (D-MN), Rep. Bella Abzug (D-NY), and former senator Ernest Gruening (D-AK). No sitting senators were willing to testify against the amendment. At the next round of hearings, a month later, three senators, Charles Percy (R-IL), Edmund Brooke (R-MA), and Floyd Haskell (D-CO), did so. Gruening, who had been a champion of birth control while in office, was surprisingly blunt, calling abortion distasteful and “the killing of nascent life,” but he still argued it should be legal. He went on to say, “I may add that I feel there is something definitely immoral for parents to spawn more children than they can support.”

The next day, four cardinals testified in what became the first time Catholic prelates spoke before Congress. In addition to Medeiros (mentioned above), they were John Cardinal Cody of Chicago, Timothy Cardinal Manning of Los Angeles, and John Cardinal Krol of Philadelphia, who minced no words in his opening statement:

Every week, since the Supreme Court’s decisions of January 22, 1973, there have been as many deaths from abortion as there were deaths at Nagasaki as a result of the atomic bomb. Every nine days there are as many deaths from abortion as there were American deaths in the 10 years of the Vietnam war.

Each cardinal expressed opposition to the second section of the proposed text, which allowed an exception for threats to the life of the mother. Instead, they preferred it to explain the difference between abortion and measures to save a woman’s life that could result in the death of her unborn child. Cardinal Cody said Buckley’s amendment, as it “stands now,” could not be “justified on moral grounds.”

While respectful, the committee grilled them and other supporters of the HLA. In contrast, no questions were asked of their opponents (though, in fairness, Abzug had to leave early). In later hearings, pro-aborts often faced little to no questioning of their opinions — in contrast to pro-lifers.

The cardinals’ statements elicited a mixed response. Some pro-lifers found them more forceful than expected but thought they could have been better. On the other hand, Shriver gave a convoluted critique, arguing that though it was not wrong for them to testify, the cardinals risked “overemphasizing” the issue and causing people to ignore the great work the Church was doing regarding racism and poverty.

In the end, the committee failed. Bayh, the leading constitutional scholar for the Democrats, came out against the HLA. His opposition led most other Senate Democrats to accept his argument. In fairness to Bayh and others, their opposition can be understood. Having grown up in the shadow of Prohibition, these sons of the New Deal were taught that Franklin Delano Roosevelt’s repeal of the 18th Amendment was one of his greatest achievements. Implicit in this view was the lesson that amendments should not be used for advancing public policy or political goals.

Despite this, Bayh reiterated that he was not personally in favor of abortion and introduced his Alternatives to Abortion package, which included many proposals for which pro-lifers had long pushed. In contrast, nowadays, members of the Democratic Party are increasingly averse to expressing any opposition to abortion.

Having failed in 1974, pro-lifers looked to 1976, hoping that, as previously, they could pressure both parties into yielding to some of their demands. At the same time, the movement wanted to rally around one presidential candidate to put the issue center stage. The man they envisaged to do so was Shriver, brother-in-law of John F. Kennedy and first head of the Peace Corps. Shriver and his wife, Eunice, had long been active in the pro-life movement. Leaders of the movement such as Marjory Mecklenburg, David Louisell, and Paul Ramsey rallied to his cause. Shriver dashed their hopes, however, when he said that though he personally opposed abortion, he supported Roe and opposed the HLA. Eunice, for her part, said that though she supported the HLA, it was unlikely to pass, so instead they should focus on anti-poverty issues to reduce demand for abortion. While most pro-lifers supported that, they saw no reason why they could not support the HLA at the same time.

According to Williams, it would have been political suicide for a Democrat in 1976 to endorse the HLA. If anything, however, Shriver’s refusal to endorse the HLA kicked the legs out from under his campaign, as he both alienated his most loyal supporters and failed to differentiate himself from the rest of the candidates. As a former strategist from his 1972 campaign said, “He’d be much better off if he’d just get up there and say, ‘I think abortion is murder and you better know it!… He doesn’t realize that people would respect him a lot more if he was willing to make enemies, if he could stand up there and tell them honestly what he believes.” In later years, Shriver expressed his true beliefs and called for ending Roe.

Bayh, who also ran that year, soon learned the intensity of the issue. His torpedoing of the HLA garnered him a special hatred from the movement. Pro-lifers would frequently picket his rallies and were unrelenting in their condemnation. Bayh’s campaign, like Shriver’s, soon fizzled out.

Only three candidates in 1976 supported the HLA: Ronald Reagan, George Wallace, and Ellen McCormack. The latter, who had never before served in office, ran as a Democrat, with her core message being opposition to abortion. Through grassroots activism, she became the first woman to receive federal matching funds for a presidential campaign. Despite being relatively unknown, she achieved considerable success, beating out senators and governors and winning 22 delegates. Future congressman and pro-life leader Chris Smith (R-NJ) ran to be one of her delegates.

Though Reagan failed to unseat Ford, his supporters were strong enough to have the party platform endorse the HLA. Ford accepted the plank despite his personal reservations, and as a further gift to pro-lifers he replaced Rockefeller with Bob Dole.

While the Democratic Party platform opposed the HLA, it acknowledged the differing views of Americans on the subject. And it did not stop congressional candidates from voicing support for it. One such person was Ed Markey, who won his first election to Congress that year while touting his support. Nearly 50 years later, however, Markey has changed his tune and is in lockstep with the rest of his party.

The man who won the 1976 election, Jimmy Carter, did so in part by his stance on abortion. Carter would swing back and forth, telling both sides what they wanted to hear, opposing the HLA and taxpayer funding for abortion. This ambiguity worked to his advantage when rallying pro-lifers. At a meeting with Catholic leaders, Carter continued to give mixed signals, disavowing the party’s plank on abortion and saying he might support the HLA. When he later turned around and opposed the HLA, Joseph Cardinal Bernardin of Cincinnati responded with frustration to Carter’s Janus-faced deception.

Despite the Republican Party’s platform supporting the HLA, Ford did not win the pro-life vote and instead split it with Carter. The Carter administration oversaw the implementation of the Hyde Amendment, which banned federal funding for abortion, but made no attempt to pass the HLA. According to Mark Stricherz in Why the Democrats Are Blue: How Secular Liberals Hijacked the People’s Party (2007), Carter, near the end of his term, had come around to the idea that Roe had gone too far, and abortion should be allowed only in cases of rape, incest, or threats to the life of the mother (a position he still holds today). However, the political winds were shifting. When Ted Kennedy primaried Carter in 1980, one of his central planks was a repeal of the Hyde Amendment. The power of pro-lifers in the Democratic Party, however, was not completely absent. Kennedy mentioned two he would consider to be his vice president: Florida governor Reubin Askew and Louisiana representative Lindy Boggs. Carter won the primary, but Reagan ultimately won the pro-life vote in the presidential election. Carter still was able to retain some pro-life support, however, including from Mike Pence, future U.S. vice president, and Charles Chaput, future archbishop of Philadelphia.

Despite setbacks, pro-lifers were still a significant faction with a serious chance of winning control of the Democratic Party. In 1978 the previously mentioned Rep. Fraser lost the party’s senate primary to pro-life outsider Robert Short. And in 1984 16 Minnesota delegates at the Democratic National Convention voted on the first ballot for Eagleton over Vice President Walter Mondale.

The furthest the HLA got was in 1983 with the proposed Hatch-Eagleton Amendment, named for its sponsors, Orrin Hatch (R-UT) and Eagleton (D-MO). However, this amendment, which declared that abortion was not a right under the Constitution, failed to meet the 67-vote threshold to move forward, garnering only 49 votes (34 Republicans and 15 Democrats).

The idea of having the Supreme Court overturn Roe came — ironically — from Rep. Robert Drinan, S.J. (D-MA), who supported legalized abortion (much to the outrage of Catholics). In November 1974 Fr. Drinan wrote a letter to a fellow Jesuit arguing that overturning a decision was “precisely the route taken during the past several decades by the leaders of the civil-rights movements. After some 50 years, the blacks of America finally got a decree in 1954 that vindicated total equality for that race” — that is, when the court decided in Brown v. Board of Education to overturn Plessy v. Ferguson (1896). Though it is hard to believe that Drinan was genuine in his suggestion, the idea would gain traction in the 1980s.

With the HLA stalled in the Senate, pro-lifers began hoping that Reagan’s alignment with them during the 1980 campaign would yield fruit. Reagan’s pledge to appoint conservative justices who would limit the “excesses” of the previous decades gave hope to the idea that the court might reverse Roe. Though pro-lifers met his nomination of Sandra Day O’Connor with skepticism, they had reason for hope. By 1986 Chief Justice Warren Burger had turned against Roe, realizing it went much further than he originally thought. That year, he and O’Connor voiced support for overturning Roe in Thornburgh v. American College of Obstetricians and Gynecologists. Only one more justice was needed to shift the balance of the court.

It went downhill from there. Though Scalia was unanimously approved, Reagan’s next nominee, Bork, went down in defeat due in part to his open opposition to Roe. It should be stressed that Bork had plenty of other baggage that made his confirmation an uphill battle. Ultimately, the seat went to Anthony Kennedy, who, along with O’Connor, changed his mind on Roe, eventually preserving the legality of abortion in Casey.

As time went on, and the Democratic Party became increasingly ardent in its support for abortion, the chances of the HLA clearing the Senate shrank. If Roe was to be overturned, it had to be done via the court, which meant supporting Republican presidents — despite their philosophy of weakening government involvement in the affairs of business, a belief strongly at odds with the New Deal ethos of the pro-life movement’s founders.

Flatfootedness has long been the Achilles’ heel of the pro-life movement. Just as pro-lifers were caught off guard by Roe, so they were with Dobbs. As pro-life leader Benjamin Watson said, “Many of us bought into the lie that abortion is over after Dobbs v. Jackson” (Newsweek, Oct. 10, 2022). Reality hit the movement, ironically, 40 days after Dobbs when Kansas, one of the reddest states in the Union, voted 59.16 to 40.84 percent against an amendment that would have overturned the previously mentioned 2019 ruling. Unsurprisingly, the pro-lifers were vastly outspent by pro-abortionists (mostly by out-of-state and dark-money groups). This is par for the course: pro-lifers are always outspent by the abortion industry, in some cases ten to one.

Money, of course, was not the only reason for the pro-life defeat in Kansas. Anti-Catholicism is a founding principle of pro-abortion advocacy, and State Sen. Cindy Holscher sounded like she was campaigning in 1922 as opposed to 2022 when she wrote an article in the Kansas City Star so awash with anti-Catholic clichés it would have made Senator “Cotton” Tom Heflin (D-AL) blush (“Kansas Constitutional Amendment on Abortion Is a Bailout for the Catholic Church,” July 9, 2022).

Even more depressing were the defeats in November 2022, when life lost all five of the ballot initiatives nationwide. Most knew California and Vermont were lost causes, but there is no denying the sting of Kentucky, Montana, and Michigan.

Though the overturning of Roe would seem to suggest the strength of the pro-life movement, reality indicates otherwise. Pro-lifers may have won in court, but they have lost everywhere else over the past 50 years. In 1972 Michigan voters rejected a legalization proposal 60.65 to 39.35 percent; in 2022 they enshrined abortion-on-demand in the state constitution by 56 percent. As mentioned above, in 1972 the New York Assembly was one vote short of overturning Gov. Rockefeller’s veto of the repeal of the abortion-legalization law he had signed in 1967; in 2019 New York passed one of the most permissive laws in the world, allowing abortion for any reason up to 24 weeks. In 1973 a bill in Congress to legalize abortion-on-demand received eight sponsors; in 2022 such a bill passed the House with 219 votes and received 49 votes in the Senate. Whereas in the past, pro-lifers were able to influence both parties into opposing the legalization of abortion, they now find themselves despised by one and grudgingly tolerated by another.

Abortion absolutism reigns in the Democratic Party. The 2012 Democratic National Convention was called an “Abortionpalooza,” while in 2016 delegates cheered when a speaker announced she had had an abortion. This year, an “abortion truck” outside the convention center offered free abortions. At the national level, the only pro-life Democrats who remain are Rep. Henry Cuellar of Texas and Sen. Joe Manchin of West Virginia.

Though the Republican Party calls itself pro-life, it has always been an uncomfortable fit. The party’s libertarian ethos, interventionist foreign policy, and distrust of government hardly made it a natural home for the pro-lifers of the 1960s. Catholic bishops were among the most prominent critics of the Reagan, both Bush, and Trump administrations on such issues, while also praising their pro-life positions. Yet the GOP’s weak commitment to the right to life was made abundantly clear in the aftermath of Dobbs. While at first dutifully praising the decision, Republican politicians soon fell over each other running away from the issue. Former President Trump has changed positions numerous times over the years. Most recently, after promising in 2016 to nominate justices who would oppose abortion (which he did), he said his next administration would be “great for women and their reproductive rights.” He even indicated that he is opposed to a federal abortion ban. This September he tweeted: “Everyone knows that I would not support a federal abortion ban, under any circumstances, and would, in fact, veto it, because it is up to the states to decide based on the will of their voters.”

It goes to show that William Devlin was right when he predicted nearly 50 years ago that the states’ rights approach does not celebrate human life; it only proliferates indifference. Though the road ahead seems dark, pro-lifers should not lose heart. I’ll end with a final word from another contributor to Triumph: “I am a total optimist. We can win it all. Don’t settle prematurely for half a cake, we might never get the rest.”

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