Endgame Agnosticism

by Timothy Kirchoff

—

In the aftermath of Roe v. Wade, pro-life activists disagreed on the best strategy to pursue. One proposed strategy focused on a sweeping proclamation of the rights of the unborn. Another proposed strategy  focused on achieving and building on smaller rhetorical and legal victories, with the aim of eventually leading people toward accepting abortion abolition.

Both of these approaches, abolitionism and incrementalism, have the same philosophical starting point — the recognition of the fundamental humanity of the unborn — and proceed to the same policy goal, the complete abolition of legalized abortion. Despite all the conflicts of strategy, ideology, and personality within the pro-life movement, this shared starting point and shared goal have allowed for a high degree of cooperation over time.

Now that Roe v. Wade has been overturned by the Dobbs decision,  pro-life activists are again debating different political strategies. However, even the most optimistic strategies leave questions unanswered about what kind of society the pro-life movement is trying to build.

A Pro-Life Society?

I have yet to meet anyone with a fully coherent vision of what it would look like to ban abortion in America: the closest many people can get is Malta or pre-2010s Ireland — but it is impossible to imagine a path by which America could reach the same social cohesion as small island nations. 

Some may point toward European abortion laws as possible improvements on the status quo across most of America. However, the systems of medicine, economics, and criminal justice are so vastly different across the Atlantic Ocean that it’s hard to imagine European laws restricting abortion apart from European maternity leave and medical care. European abortion laws are one piece of a larger picture, and if we were to transpose that piece into the American milieu, it would interact with our medical system or our criminal justice system differently than it does with its European equivalents. 

For example, throughout the United States, but in the Deep South in particular, restrictions on abortion may be perceived as another arm of the “New Jim Crow” regime, in which ordinary activities by Black Americans are either criminalized or made massively inconvenient by antagonistic policing. Such restrictions may also potentially be enforced by law enforcement in discriminatory ways, regardless of legislative intent. 

In many parts of America, where hospitals are struggling to stay open (a reality that will only be worsened by the Big Beautiful Bill’s cuts to Medicaid), maternity care is suffering. Low standards of maternity care must be understood as a significant injustice against the unborn. The threats to the dignity of the unborn are plentiful, and no one appears to have a ready and satisfactory solution to all of them.

The Elusive Goal of Equal Protection

Even the most ambitious pro-life proposals become ambiguous on closer examination. For example, the New North Star letter appears at first glance to be a bold call for abortion abolitionism. This letter, signed by a number of notable pro-life activists, calls for a collective focus on extending 14^th Amendment protections — specifically the equal protection clause — to the unborn. Interpreting the Constitution to require the “equal protection” of unborn life sounds like it would be the definitive end to abortion pro-lifers have long been seeking.

However, that is not necessarily how all the signatories themselves see it. 

One of the signatories, Joshua Craddock, wrote an article  “Personhood after Dobbs,” that was published in the Catholic University Law Review.  The article expands on the 14^th Amendment approach that the New North Star letter had articulated. 

After very briefly summarizing the argument that the “Original public meaning” (i.e., the principal criterion of constitutional originalism) of the 14^th Amendment would have included the unborn, Craddock spends much of the article analyzing the range of policies that would be possible if the Supreme Court were to rule that the equal protection clause applies to the unborn. 

Craddock writes in several places about the broad range of potentially reasonable interpretations of “equal protection,” suggesting, “Legislatures may rationally conclude that taking unborn life typically demonstrates a lesser or greater degree of malice or empathy, that the difficulty in proving the cause of death differs from ordinary homicide[…] or that taking an unborn life requires less criminal deterrence because prohibition of third-party crimes against the mother already affords the unborn person with a measure of protection.” He notes that Congress has some power (and obligation) to address state-level failures in assuring equal protection, but also that the “’one-step-at-a-time’ doctrine allows for piecemeal legislative efforts that are responsive to political realities.”

If Craddock is correct, then even in a country in which the 14^th Amendment is construed to include the unborn, there is still a great deal of uncertainty as to what shape laws might take to extend the equal protection of the law. Extending equal protection in this way would give the interests of the unborn greater consideration in the courts and impose vague obligations on legislatures and executives at the state and federal level. However, extending equal protection to the unborn wouldn’t mandate a specific policy or law enforcement approach toward abortion. 

Rather than being the final capstone for pro-life political organizing, treating the unborn as persons under the 14^th Amendment lays a new foundation on which various different policies could be built. The policy recommendations of the New North Star letter are just one array of possibilities, and the “parade of horribles” often invoked by pro-choice sources are a much less likely prospect. The 14^th Amendment approach would not make unborn life sacrosanct under the Constitution; rather, it would just nominally add their concerns to the list of interests lawmakers should consider.

What Is the Ultimate Goal?

This takes us at last to the provocative title of this essay, “endgame agnosticism.”  Ultimately, I'm uncomfortable with both abolitionism, which seeks to ban abortion as completely and immediately as possible, and incrementalism, which wants to work toward a complete ban by gradual legislative and rhetorical steps. 

One school of thought thinks we can and should go from 0 to 10, while the other is willing to make intermediary stops at 2, 4, 5, or 7 on the way to 10. In light of Craddock’s analysis of the 14^th Amendment, I don't think anyone has enough of an idea what 10 — in this case, an end to abortion — looks like in any practical terms.

Even if we can persuade the Supreme Court to hold that the historically and morally correct reading of the 14^th Amendment means extending the equal protection of the law to the unborn, the door would be wide open for a wide array of interpretations — and therefore debates. Equal protection gives the interests of unborn life a seat at the table, but there would still be many negotiations and arguments at that table, and we cannot predict exactly what those debates will look like, nor can we know ahead of time which sides of those debates will be either correct or victorious.

This admission that we don’t know what the equal protection of the unborn will look like is one of the two tenets of what I call “endgame agnosticism.” The second is a commitment to democratic methods of governance — in other words, we need to regard any pro-life legal regime as requiring what political philosophers once called the “consent of the governed.” 

Setting aside the questions of to what degree Americans today distrust the Supreme Court and whether that distrust is justified, a reliance on Supreme Court decisions is not inherently at odds with a commitment to democracy. The case that led to the 2022 Dobbs decision was based on a Mississippi law passed in 2018, and any new case brought before the court to try to argue for equal protection would similarly need to be based on state-level legislation that would require some degree of sustained popular support. 

Whether to pursue 14th Amendment protections via a court case or constitutional amendment or any other legal method under the Constitution is more a question of prudence than the principle of consent of the governed. The principle becomes utterly indispensable, however, when considering the legal landscape that Craddock thinks an expanded interpretation of the 14th Amendment would create.

Taking into account the consent of the governed means we must not dictate from our own partial understanding. Rather, we must recognize that our own perspective is partial and imperfect and invite others’ equal participation in shaping what equal protection might look like. It doesn’t mean that everyone needs to agree on every detail, but people should generally be able to trust that our legal proposals are designed to promote everyone’s well-being, not just to limit abortion access by whatever means we have available.

For the past several decades, certain public figures have said that their personal opposition to abortion did not translate into a willingness to impose their personal morals on others. This has often functioned as a handy excuse for these people to stop talking about the dignity of the unborn altogether. 

Other public figures have advanced arguments to the effect of, “If you really cared about the unborn, then you would support…” and then go on to list any number of policies that may serve the interests of the unborn but don’t touch directly on abortion. This line has often functioned to shut down any direct discussion of abortion in favor of focusing on the speaker’s pet issue.

If the 14^th Amendment’s protections were extended to the unborn, these familiar old lines would doubtless continue to play their tired roles in bad-faith arguments, but we would need to acknowledge their more legitimate functions: Craddock's analysis suggests that courts could take these arguments in good faith, so pro-life advocates would be obliged to take them more seriously as well. 

If elected officials think that their constituents would perceive a particular proposed abortion restriction as legislators imposing their personal morality, then they are justified in asking for a different approach. Similarly, Craddock’s analysis leaves plenty of room for policymakers to argue that policies that indirectly affect the well-being of the unborn are compliant with equal protection even if they don’t directly restrict abortion. 

When we encounter people who profess to value the unborn but for whom the protection of the unborn is not their top policy priority, we must not resort to moralistically browbeating them into supporting our latest policy ideas. Rather, we must treat them as genuine equals whose trust must be earned. 

This approach may mean recognizing that taxpayer money spent on maternity care is usually orders of magnitude more worthwhile than spending that same money on police investigations of miscarriages. It may mean ceding ground if a vulnerable community understands a proposed policy as targeting them unfairly. There is a world of difference between imposing a moral vision dictatorially and building a moral vision collaboratively. We must disavow the former and work toward the latter.

The claim that the 14^th Amendment protects the unborn is fundamentally a claim that recognizing the dignity of the unborn is a natural development of America’s founding ideals, the same as the recognition of equality across the lines of race and gender. In no other case has the constitutional recognition of equality led to a clear-cut and uncontroversial understanding of what that equality implies, and it would be no different in the case of the unborn. “We the people” would have to work it out together.