[Editor’s Note: Catherine Glenn Foster, M.A., J.D., serves as President & CEO of Americans United for Life, America’s original national pro-life organization and the nation’s premier pro-life legal team. AUL’s legal strategists have been involved in every pro-life case before the U.S. Supreme Court since Roe v. Wade. She spoke to Charles Camosy about the Lincoln Proposal, a project to use presidential powers to protect the unborn.]
Camosy: Can you tell us about the history of the Lincoln Proposal? Some of the background and story that lead you to move in this direction?
Foster: Since 1973, more than 60 million American children have been killed by the violence of abortion. The horror of approximately 2,000 daily killings stems from the United States Supreme Court’s constitutional errors in Roe v. Wade. The Court made two fundamental errors in Roe: first, in its refusal to read the Fourteenth Amendment’s guarantees of equal protection and due process to extend to preborn persons; and second, in its erroneous conclusion that “the right to privacy extends to abortion.”
Scholars ranging from Professor Robert P. George to Professor Mark Tushnet have observed, the judiciary is not the sole interpreter of the Constitution. Rather, the legislature and executive share in this responsibility. Since Planned Parenthood v. Casey, the judicial and legislative branches, as well as the states, have engaged in a kind of trench warfare over the logic and scope of Roe’s secondary error. The Lincoln Proposal offers a bold vision to repair our constitutional order by turning the executive’s attention to the task of correcting Roe’s first and foundational error.
President Abraham Lincoln led with strength and moral clarity. During the most challenging period in our nation’s history, Lincoln did not cower from dealing with the most pressing human rights issue of his age. What President Lincoln is most widely remembered for to this day is his clear-eyed denunciation of, and courageous action to end, the atrocity of slavery. One of the most important actions Lincoln took to combat slavery was his administration’s strong position to stand up to the Supreme Court’s shameful decision in Dred Scott v. Sandford. As a Senate candidate, Lincoln acknowledged the Court’s decision as binding on the parties, but denied that the opinion possessed precedential effect. Once elected President, Lincoln reaffirmed his commitment to resisting Dred Scott in his first inaugural address, warning that:
If the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court . . . the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.
In another context, Lincoln’s attorney general drafted a lengthy legal opinion arguing that “the president and the judiciary are co-ordinate departments of government, and the one not subordinate to the other.” Thus, the executive must be able “to act out its own granted powers, without any ordained or legal superior possessing the power to revise and reverse its action.”
The Lincoln administration put its theory into practice, disregarding Dred Scott’s central argument against black citizenship and issuing passports and patents to black Americans—acts squarely within his purview as the chief executive. Lincoln also exercised authority over the federal territories and the District of Columbia by signing bills that abolished slavery in those jurisdictions, despite Dred Scott’s assertion that the territories were constitutionally required to permit slavery. Most famously, Lincoln’s Emancipation Proclamation, issued on January 1, 1863, in the midst of the Civil War, declared “that all persons held as slaves” within the warring southern states “are, and henceforward shall be free.”
The Lincoln Proposal was conceived from the demand that presidents who claim to be pro-life act with boldness and ambition in defense of the human person. Pro-life voters can no longer be taken for granted; we need to see real action that deals with the violence of abortion with the same urgency as other pressing public policy issues, the same way President Lincoln led on ending slavery.
Can you give us a quick summary of the Lincoln Proposal? What is it that you are proposing, specifically?
A pro-life president can and should issue an executive order to protect human beings from the moment of conception, relying on their constitutionally prescribed interpretative authority. Such an order would constitute a binding and authoritative interpretation of the Constitution within the executive branch, including its departments and agencies. The president could direct departments and agencies to examine their regulations and programs to ensure they align with the president’s executive order, and to initiate rulemaking or issue guidance bringing those regulations and programs into compliance with the president’s interpretation as necessary.
Such an order would be supported by strong precedents. Several of America’s greatest presidents — including Thomas Jefferson, Andrew Jackson, and Abraham Lincoln — have relied on the presidential oath and Take Care Clauses to assert the executive’s independent duty to interpret and execute the Constitution, even in the face of contrary judicial decisions.
Here are a few direct examples of how the executive order could be implemented to begin protecting human life. The president could direct:
– The Department of Justice to oppose judicial injunctions intended to restrict and interfere with the ability of congressional and state lawmakers to codify protections for human life;
– The Department of Justice and its Civil Rights Division to investigate state or municipal laws or policies that deprive preborn persons of due process of law or the equal protection of the laws;
– The Department of Commerce and Census Bureau to enumerate children born and not yet born in the decennial census, consistent with Section 2 of the Fourteenth Amendment, which requires apportionment “counting the whole number of persons in each state”;
– The Department of Defense to establish National Safe Havens at all military and recruiting stations for expectant mothers facing abuse or coercion, and for emergency housing, financial, and educational aid for those seeking alternatives to abortion, particularly in jurisdictions hostile to protections for human life;
– The State Department to ensure that preborn children are not denied equal protection in multilateral instruments at the United Nations and other international treaty bodies, either by policy or by subsidization with U.S. taxpayer funds;
– The Department of Health and Human Services to condition federal healthcare funding on state defunding of abortion businesses and redirecting such funds to life-affirming pregnancy resource centers and direct aid alternatives;
– The Food and Drug Administration to suspend its approvals of chemical abortifacients such as RU-486 (Mifeprex) and similar generic drugs, and to take affirmative steps to deny the importation of abortifacients from outside the borders of the United States; and
– The Department of Education to withhold federal funds from school programs that advocate abortion or the use of abortifacient drugs, and to promote educational programs that accurately teach the biological fact that each human life begins at sperm-egg fusion.
I must admit that my first reaction to this is skeptical. I worry, for instance, that if Trump follows your lead and does this, say, next month, that he will be so firmly connected to the pro-life movement that it will be nearly impossible for us to disconnect. Especially given what it means for the pro-life movement to win the future–by winning young people–isn’t it time to be thinking about post-Trump strategies for the pro-life movement? Not thinking about tying ourselves more to him in ways that young people will dismiss?
The Lincoln Proposal is not about President Trump; it is about looking towards the future. Jockeying for who will be the next presidential candidates in 2024 has already started, and it is vital that candidates who wish to win the pro-life vote understand that the old bag of tricks is simply not enough anymore. While the next few years may be focused on preserving important pro-life protections like the Hyde Amendment, pro-lifers, especially young pro-lifers, will be looking towards what an administration that is truly interested in defending the human right to life could do in the future.
Young voters care about empathy, boldness, and most of all: Honesty. The Lincoln Proposal offers a clear, legally sound, policy option that would have an immediate impact in defending life and advancing pro-life priorities. One of the most frustrating things about politics, and young voters feel this astutely, is the disingenuous nature in which so many politicians will pay lip service to an issue, but then once they are in a position to actually do something, they are silent. We must do better.
Pro-life voters are playing an increasingly important role in electoral politics, and after President Trump leaves office, I am sure that we will have presidents in the future who won on the strength of pro-life voters. For a candidate to win the votes of pro-life voters in the future, we must demand that they prioritize the issue. I encourage every leader considering a run for president, Republican or Democrat, to embrace the Lincoln Proposal and promise to implement it if they are elected to office. The protection of innocent human life can no longer be looked at as a second-tier political priority that can be ignored once the election is won. If a candidate is supported by the pro-life movement, the candidate once in office must act on the convictions they shared with their voters.
What do you think about the argument that this plays into a dangerous “dueling banjos” model of governing by executive orders from whichever party happens to be in the White House? In other words, even if something like this is done, won’t it simply be undone by the next president who supports abortion rights?
While legislative action is critically important, the powers and responsibilities of the President cannot be ignored by the pro-life movement. It is not the president’s role to consider how her successor might govern, but instead to govern with wisdom and prudence in the name of all Americans to the best of her ability. Similar to the Mexico City Policy, an executive order forbidding federal money from funding abortions overseas, we may see future pro-abortion presidents revoke the order, while future pro-life presidents once more issue it. We also cannot ignore the lives that would be saved while the order was in effect and the lasting precedent that would impact law and policy from then on.
The pro-life movement cannot be afraid of stark contrast. We must paint with bold colors, not pale pastels. As we have seen with other issues in our past such as slavery and the struggle for civil rights, it is beneficial to offer clarifying moments in national political discourse. If a pro-life president enacts the Lincoln Proposal, but her pro-abortion successor chooses to rescind, he would have to explain why. And as we know, when justifying the intentional killing of our youngest and most innocent Americans, the “why” usually isn’t very compelling. Drawing these conversations out into the open would help educate and persuade more Americans to the justness of the cause for life.
It is also important that the pro-life movement doesn’t insist on fighting our battle for the soul of the nation with one arm tied behind our back. We must not let the perfect be the enemy of the good. Of course, I would like to see a human life amendment added to the Constitution, or for Congress to take up a myriad of new pro-life protections. Those avenues should continue to be advocated and fiercely defended. The Lincoln Proposal does not replace those efforts; it supplements them by creating a pro-life agenda for the equally important executive branch of our federal government. In an America where life is truly winning, the Lincoln Proposal will be an important first step towards codifying life to the benefit of our posterity.
Where can someone learn more about the Lincoln Proposal?
Readers should visit https://lincolnproposal.com/ to access the complete white paper and keep up with future news and updates. We will continue the conversation on this priority and other pro-life protections as we strive for the day when all are welcomed throughout life and protected in law.