So-called conservative commentator Tomi Lahren recently aired (or should I say erred?) her opinion against overturning Roe v. Wade, the 1973 landmark Supreme Court ruling that forced states to legalize abortion until birth. Pro-lifers have been trying to topple the ruling for 45 years, but Lahren says it would be a “huge mistake” to press for overturning it by appointing a strict constitutionalist Supreme Court justice.
“This president is winning for the American people on the economy, foreign policy, and tax reform,” she said. “These are areas that benefit all Americans regardless of religion or social beliefs. If we continue to focus on these things and immigration, we’ll sail into 2020 with all three branches in our control. That’s how we get things done for the American people, that’s how we win,” she said, declaring that “we lose when we start tampering with social issues.”
After taking heat for this on social media, she tweeted, “Who are you to tell me what I should believe in? Who are you to tell me what my moral fiber is made of? Who are you to tell me I’m not ‘conservative enough?’ It’s THAT mentality that turns people to the Left. You can disagree with me but don’t you dare tell me how to think.”
Let’s Get This Straight: Roe Was a Garbage Decision
There’s a lot to unpack here, but first let me do what hardly anyone bothers to, which is explain, briefly, exactly what the Roe V. Wade decision was. In Roe, the Supreme Court found a constitutional right to abortion wrapped up in the concept of the right to privacy, which is embedded in the word “liberty,” in the Due Process clause of the Fourteenth Amendment.
Roe was judicial activism of the most blatant kind. It was bench legislation, pure and simple. Consider this section:
To summarize and to repeat:
- A state criminal abortion statute of the current Texas type, that excepts from criminality only a lifesaving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.
(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life  may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.
That reads like a section of a bill, not a constitutional ruling. Judges are not supposed to make laws, they are supposed to apply them. Doing otherwise undermines the rule of law, which is necessary for a stable society and rule by consent of the governed.
The court majority found a constitutional right to abortion through the concept of “substantive due process,” which basically means some rights are so fundamental, they cannot be taken away—even through due process. Justice Antonin Scalia, one of only two dissenters in Casey, which upheld the central holding of Roe, thought this was quite silly, and he is correct. Even abortion rights supporters agree that Roe is terrible jurisprudence.
Weird Position for ‘Someone Who Loves the Constitution’
Yes, I am trying to tell Lahren (and others) how to think. I want to convince her of the correctness of the pro-life position on Roe v. Wade. Vigorous debate is a wonderful American tradition. It is the Left who largely refuse to entertain others’ ideas, as she has made a career of pillorying, so I am confused as to why Tomi is so hostile to interacting with broadly orthodox conservative beliefs, and thinks that helps define her as an anti-leftist.
As for her “moral fiber,” anyone is free to make a judgment about it just as she and I are free to make a moral judgment about the character of Hillary Clinton. It’s a free country. Yet I will make the case on Tomi’s own values first, and then on the values that should be universal.
Lahren stated on “The View” that she is pro-choice and that the government should “stay out of my guns, and stay out of my body as well.” She has also said she is an anti-social-justice-warrior, supports limited government, and she describes herself as “someone that loves the Constitution.”
If Tomi truly holds these opinions and read the majority opinion of Roe v. Wade, beginning to end, she should come to the conclusion that Roe was social justice activism of the most egregious and dangerous kind. This wasn’t a bunch of “snowflakes” huddling in safe spaces and complaining about others exercising their free speech. These were seven black-robed justices in the highest court conspiring to bind all states to uphold a right that can be found nowhere in the Constitution. Not only that, they told the states exactly how that right must be upheld.
Roe Is Government Inserting Itself Into Women’s Rights
Roe was the Supreme Court saying states may not create their own legislation on this issue as influenced by the votes of their own constituents, which of course include women. Casey gave states slightly more leniency in regulating abortion, but said states are not allowed to place an “undue burden” on a woman’s right to destroy her preborn child, another legal device contrived to achieve political ends rather than uphold the Constitution’s plain meaning. Both decisions, far from keeping the government out of a women’s issue, inserted federal government directly into it.
Based on these truths, a consistent pro-choice “constitutional conservative” should be for overturning Roe, not keeping it. But perhaps she has bought into two bad ideas to ignore this reality: one arising from long-standing leftist dogma, and the other from more recent rightist thought.
The former is the idea that a fetus should be thought of, at least on the legal and philosophical levels, as “part of the woman,” and therefore completely without rights. According to the Left, abortion is the right for a woman to “choose what to do with her own body.”
This is factually wrong. A fetus is a separate and unique individual, with his own DNA and his own body. Even at the moment of conception, he is separate and unique and contains all the biological information necessary to grow into a full mature body like yours or mine. If Tomi believes in science, she should drop the Left’s dogma immediately and at least find another, more scientifically correct rationale for her stance.
Those of a libertarian bent might balk at the idea that the state governments can “intrude” and “regulate” what one does with her body, and be sympathetic to the Supreme Court’s attempt to find a way to “protect” private citizens from government meddling. While constitutional conservatives may hold this opinion philosophically, it is quite hard to hold as a legal opinion. As I just explained, the “my body, my right” position has no merit: a tiny helpless preborn person is directly affected (killed) in an abortion, and abortion is almost always of a transactional nature anyway, since an abortionist is also involved.
The Point of ‘Winning’ Is to Protect the Innocent
The other idea that might hold pro-choice “conservatives” like Tomi back is based on the myopic view that “winning” is what matters most. Trump is doing things that benefit “all Americans,” she says. Why don’t we focus on that so Republicans can “sail into 2020” with all three branches in their control? No. Winning elections means nothing if you cannot or will not do the right thing while in office.
Roughly 60 million preborn lives have been lost since Roe V. Wade legalized women’s power to kill them. Saying “winning” matters more than protecting the unborn is sort of like saying the government of 1858 was doing things that benefitted all Americans when an entire class of individuals (blacks) were barred, by the very same institution that wrote Roe, from even being American citizens.
Trump’s administration has done some great things to help protect the most innocent among us, including preventing U.S. taxpayer dollars from funding abortion abroad and adding the preborn as a group the Department of Health and Human Services aims to help. His HHS has also put up barriers to Title X funding for Planned Parenthood, the nation’s largest abortion provider. These are wins for the preborn, and for the people who supported Trump because they believed he would govern by pro-life principles.
By no means should the president be pressured to appoint a Supreme Court justice who would uphold Roe’s faulty reasoning so he can keep “winning,” for he would be winning at the cost of an entire class of Americans, and of states’ rights, to boot. It may still be a long shot that Trump appointees will remake the court into one that would overturn Roe, but it is not an opportunity he should pass up.
Social Issues Are How Lahren Made Her Career
As for “tampering with social issues,” Tomi made her career by doing exactly that: immigration, snowflakery, and guns are all social issues she has “tampered” with to win herself fame. Also, social issues are at the heart of what it means to be a conservative. If you do not hold family integrity, personal responsibility, individual rights (including the right to life), equal protection for minority factions, and a healthy disdain for pure majoritarian rule as central to your conservatism, you should ditch the label and call yourself a fiscal libertarian.
Indeed, the sanctity of life is foundational to conservatism. It is foundational to a free society. If we do not sufficiently value life, everything else, including liberty, property, and the pursuit of happiness, slips away like sand between our fingers.
Winning means nothing to those who cannot live to enjoy the fruits of victory. The right to life is the hill to die on. It is the most pressing issue of our time. The next century will scoff at Roe v. Wade the way we scoff at Dred Scott v. Sandford and Plessy v. Ferguson.
How many battles must a party evade in order to be able to say it technically isn’t losing? In a fragile democratic republic like ours, with rights so precious, we must not ask what issues we should give up for fleeting power, but what convictions call us irresistibly to battle and to sacrifice. We may be the minority now, but truth will win in the end if we do not forsake it for political expediency or because it is embarrassing or inconvenient to our other ambitions. That’s what winning means.
So if Tomi really wants to win, she should drop the leftist pretenses and join the right side of a revolution—a revolution that will guarantee the promise of our Declaration of Independence to all Americans, great and small.