Abortion is the most important moral issue of our time, but that doesn’t mean the federal government can regulate it. Congress simply doesn’t have that power, and Republicans need to be “Constitution First” in their approach if they hope to survive Democrat attacks this fall. Read my new column from Real Clear Politics.

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By FRANK MIELE

All the pundits are quite certain. Abortion will be a decisive issue in the 2024 election cycle, and it may well cost Republicans a variety of Senate seats, House seats, and very possibly the presidency.

Democrats and the left-wing media seem almost gleeful that many Republicans are driven by conscience to oppose abortion, and they dare them to sponsor federal legislation that would restrict abortion rights (they are not reproductive rights) either to 15 weeks of pregnancy or to six weeks, or even altogether. They claim that such a restriction would push women voters into the Democratic camp.

Maybe so. But there has to be more to our national conversation about abortion than merely who it helps or hurts politically. This has to be a human issue, and as a human issue, it is terribly complicated.

I was a 14-year-old high school freshman in 1970 when the state of New York legalized abortion. My mother had explained to me the importance of giving women this right in order to prevent the tragedy of what were commonly called “back-alley abortions.”

The idea was that desperate women would pursue illegal abortions, either on their own or with the help of non-medical providers, and would thus risk death or serious injury in unsafe conditions. It made perfect sense to me that to prevent those tragedies, the state agreed to decriminalize abortion.

Then, three years later, the Supreme Court said that all women in the United States had a constitutional right to abortion. At the time, it seemed like a good way to protect women from unscrupulous abortionists and to ensure that they could have safe abortions if needed.

But the legal reasoning of Roe v. Wadenever made sense. There was clearly no explicit constitutional right to abortion in the U.S. Constitution, nor was there any enumerated federal power that granted either the court or Congress the power to regulate abortion. In fact, it was clear that under the 10th Amendment, it was a power that was “reserved to the states.”

That was the argument for reversing Roe v. Wade and allowing states to make their own determination about whether abortion was an acceptable or unacceptable practice, and it was that logic that the Supreme Court used nearly 50 years later to overturn Roe in the Dobbs decision and return the power to regulate abortion to the states.

By that time, I had been a pro-life conservative for many years. What changed my mind? Back in the mid-1980s, when I was still a good liberal, I belonged to the National Organization for Women, and through a process of everyone else backing out, I became the first (and probably only) male president of our local chapter in Kalispell, Montana, and was responsible for arranging topics and guest speakers for each meeting. The one and only abortion doctor in the Flathead Valley approached me about speaking to the group, and I signed him up. Little did I know it would be a life-changing experience.

Dr. Armstrong arrived at the meeting early and waited patiently at the table until it was his turn to speak. Then he reached into a satchel and withdrew several bottles that he then placed on the table. Each bottle contained a fetus at various stages of development. The largest, he explained, was from a late second-term abortion, and in his mind, all of the specimens were just tissue, no different than a tumor that had been sliced out of a cancer patient.

But it was not the same for most of us in attendance. The women who were there were unsettled by the display and quickly passed the bottle with the largest fetus around the table as if to avoid it. But there it was, and it was unavoidable – a fully formed human being, with fingers and toes, lips and eyelids, resting ghoulishly in a bottle of formaldehyde. I can’t speak for my fellow members of NOW, but for me, abortion was no longer just an abstract concept. It was a baby ripped out of its mother’s womb and deprived of the same chance the rest of us cherished – the chance to live a life for good or for bad, for better or for worse, but a life that was entirely human. I finished my term as president, but then I stopped attending meetings, and eventually, I asked the national organization to remove me from its membership rolls.

Because once you see an aborted fetus as a human being, you must take responsibility for what your country has done. By the time I saw a fully formed fetus on display like a carnival exhibit, the country had already experienced more than 10 million legal abortions performed post-Roe. By now, of course, that number is past 60 million. That, to me, in my wakened state, was essentially a holocaust of potential lives, an unimaginable loss of humanity.

Remember, originally the argument for legal abortion was that women would pursue dangerous illegal abortions if there were no medical assistance available and thus would put themselves at risk of death. But now more than 50 years later, we need to question our assumptions.

In 1972, according to the CDC, legally induced abortions led to 24 deaths of pregnant women, whereas illegal abortions caused 39 deaths. That was the year before Roe v. Wade. As a result of Roe, the number of deaths of women caused by illegal abortion did shrink down to the low single digits within a few years. So, legalized abortion did indeed save some women’s lives, perhaps a few hundred over the last 51 years.

But how can that justify the death of 60 million babies? That is one of the questions that we as a nation have to grapple with.

Of course, if there had been no Roe v. Wadedecision legalizing abortion nationwide, there still would have been legal abortion in many states such as New York. You can easily assume that even if some states had chosen to keep abortion illegal, as many as 40 million infants would have still been aborted, so the Supreme Court is not solely responsible for all those deaths.

And that brings us to the political question before Congress and before America today. In its Dobbs decision, the Supreme Court returned the power to regulate abortion to the states. Many conservative politicians object to allowing abortion to occur legally anywhere, and some of them have talked about trying to pass some kind of nationwide ban on abortion.

While noble in intention, such a move would be legally invalid and would simply repeat the error of Roe in the opposite direction. There is no constitutional authority by which Congress can pass laws on abortion.

As I have done before, let me note again that Article 1, Section 8 of the Constitution enumerates these very limited powers of Congress: Raise taxes; borrow money; regulate international commerce and commerce among the states; establish a process for naturalizing citizens; coin money and punish counterfeiters; establish post offices; establish copyright and trademark laws; establish lower courts; regulate pirates; declare war; raise armies and a navy; provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions; and to create and maintain a small district that shall be the seat of government.

Search as you might, there is no constitutional provision that gives federal lawmakers the power to make rules concerning a woman’s right to terminate a pregnancy or a government’s right to force her to carry her pregnancy to term.

I don’t know why it is so hard for members of Congress to grasp that simple fact. Democrats are just as guilty when they talk about passing a law guaranteeing the right to abortion. The only means for the federal government to regulate abortion would be by proposing and then successfully adopting a constitutional amendment that specifically established a right or a restriction. Short of that, any legislative action at the national level would be totally invalid.

That’s why every Republican member of Congress and every Republican candidate for Congress should be prepared to explain to voters that they will not support unconstitutional legislation to ban abortion. To a genuine conservative, there can be no shortcuts or workarounds that ignore the Constitution. This may aggravate some pro-life voters, but candidates can still be pro-life without seeking an unconstitutional solution.

Republican pro-life candidates must run on a platform of supporting efforts to overturn or restrict legal abortion in all 50 states, but they must be honest with their voters. It can’t happen with national legislation, but only on a state-by-state basis. No matter how much we wish it otherwise, there will be legal abortion in Democrat-controlled states for the foreseeable future. But now it is clear that the responsibility for those abortions, for that holocaust if you will, is not because of a court decision but because of choices made by individuals.

As long as we live in a free society, we have to live with the consequences of freedom. Legal abortion is one of those consequences. It can’t be waved away with a political gesture, and it should be talked about with a full understanding of its impact on our society. Democrats intend to play political games with the issue this November, and President Biden already began that process in his State of the Union address last week. But Republicans must not take the bait. If they want to seize a majority in both houses of Congress, they must be prepared to answer the question that the left-leaning media will hit them with repeatedly, “Are you in favor of a federal ban on abortion?”

The answer must be honest and understanding: “I am against abortion because I consider it the taking of innocent life, but I am a ‘Constitution First’ Republican. I will not vote for any laws that do not fall under the powers granted to Congress by Article 1, Section 8. If anyone can show me the language in the Constitution that permits Congress to regulate abortion, I will vote to do so. But until then, I will support the Supreme Court’s decision to return the responsibility for abortion legislation to the states, and I will fight tirelessly as an advocate for innocent life in my own state and others.”

It should be noted, finally, that such a pledge would not just impede Congress from improperly trying to legislate rules about abortion; it would also prevent Congress from trying to regulate vast swaths of our public life. Read Section 8 for yourself. It is time that Congress and the president both return to the very limited jobs that the Constitution intended and stop meddling where they have no business.