A Principled Defense of the 2024 Republican Platform on Abortion
Social conservatives are blasting the new Republican Party Platform. Written with the heavy involvement of the Trump camp, the platform removes a definition of marriage as between a man and a woman and drops any mention of a nation-wide ban on abortion. Many are saying that the Republican Party is no longer pro-life, and that we are entering a new secular era.
The chart below compares the 2024 platform with the 2016 platform (the most recent) on same-sex marriage and abortion.
No one can deny that the tone has changed. The vice presidential candidate, J.D. Vance, recently voiced support for the Court’s decision to throw out a legal challenge to the FDA’s approval of the “abortion pill.” When pressed, he said he agreed that the pill (misoprostol) should be accessible to Americans. Marco Rubio has stated that a federal abortion ban is not feasible and that the “platform should reflect the nominee.” Both are Catholic and were once thought to be staunchly pro-life.
Unsurprisingly, many social conservatives on X are blasting Republicans for this backtracking. See, for instance, Edward Feser, a Catholic professor of philosophy at Pasadena City College. Another example is Susannah Black Roberts, who advertises being “postliberal” on her X page.
What are we to make of this change? My thoughts are mixed. On the one hand, there is no doubt that the Republican Party, along with the country at large, is becoming less socially conservative. Trump has catalyzed this trend, but doubtless it would be happening anyway. Remember, in 2022 twelve Republican Senators voted in favor of a law that would require states to recognize same-sex marriages from other states. About half of Republicans support same-sex marriage. And many Republicans have been running scared ever since it became clear that overturning Roe V. Wade contributed to Republican underperformance in the 2022 elections. It’s hard to win votes if you defend unpopular positions. Many predict that the Republican Party will morph into a European-style right-wing party: economically populist, nationalist, and (largely) socially progressive. They may well be right, and Trump’s open embrace of LGBT Americans and non-Christian religions (e.g. the Sikh prayer at the convention) makes this outcome more likely.
Still, I want to argue that the position on abortion and same-sex marriage written into the 2024 Republican Party platform is eminently defensible, not only for “pragmatic” reasons but for principled reasons. Even for a Christian nationalist, like myself. (In fact, I already endorsed the view that I defend below prior to the change and even prior to the rise of Trump.)
Federalism and Abortion
The 2024 platform does not endorse abortion. It leaves abortion regulation to the states. Arguably, this outcome is consistent with the theory and history of American constitutionalism.
“Federalism” refers to a political system in which there are two levels of government. A federal republic with a single “national government” is territorially subdivided into “provinces” or “states” with “subnational governments.” The American states preexisted the United States as a nation, since they had all been colonies of Great Britain. They united under a federal constitution in 1783, called the Articles of Confederation, which was replaced in 1789 with the Constitution of the United States. Under the Constitution, legislative authority is divided between the subnational (i.e. state) governments and the national government.
Several principles govern the federal division of power. Most fundamentally, the national government only has “enumerated powers,” or a set of powers specifically “enumerated” (listed) in the Constitution. These are also called “delegated” powers. All other powers are “reserved” to the states. This reservation was made explicit in the 10th Amendment, which reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The original vision was that the national government would only deal with issues involving the entire country, for which national unity is necessary. Examples include war, foreign and interstate trade, regulation of the currency, and the naturalization of immigrants. These powers are listed in Article 1, Section 8 of the Constitution.
For our present purposes, it is crucial that one of the most important “reserved powers,” which again are held by the states, is called the “police power.” The police power is “the capacity of the states to regulate behavior and enforce order within their territory for the betterment of the health, safety, morals, and general welfare of their inhabitants.”[1] Most criminal law falls under state law, including—crucially—murder laws.
Of course, we all know it isn’t so simple. Federal power has grown over time through a variety of mechanisms, which can only be mentioned briefly here.
The “Necessary and Proper Clause” gives the federal government the power to use all means “necessary and proper” to the attainment of its enumerated powers. The understanding of what is “necessary and proper” has grown over time.
The “General Welfare Clause” has been interpreted to allow virtually any federal legislation. This Clause states: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; ….”[2] The most likely original meaning of this clause is that using the phrase “the general welfare” was a generic way of referring to the specific powers enumerated in Article 1, Section 8. In other words, the content and extent of “the general welfare” was defined by the specific power listed just after this clause. However, the Supreme Court has interpreted this clause to mean that Congress can tax and spend for any purpose it deems to be good for the country.
Most importantly, the “Commerce Clause” has become the vehicle through which most federal legislation is passed. This clause permits to Congress “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”[3] It was intended to allow Congress to determine what articles would be imported and exported, to set tariffs and other trade regulations, and to prevent states from engaging in discriminatory trade practices against each other. However, the Supreme Court ruled during the New Deal that virtually everything falls under the commerce power, because virtually everything affects interstate commerce even if it isn’t interstate commerce itself.
The point is that the power of the federal government is virtually restricted. But here’s the thing: I don’t care. I want to roll back the expansion of federal power and return authority to the states. My Ph.D dissertation dealt with this topic. For a number of reasons, it is good to allow states to pass different laws, even if doing so sometimes prevent the enactment of good laws across the entire country. The fact that federalism has already been severely eroded doesn’t justify further erosion.
Murder Laws and George Floyd
At first glance, as we’ve seen, abortion appears to fall under the “police powers” of the states. People might object that “abortion is murder,” and therefore that it’s “too important” to leave to the states. Those people will be dismayed to hear that homicide is, and always has been, only a state crime and not a federal crime.[4] Homicide is punished differently in different states—most notably, some states allow for the death penalty for first degree murder, while others do not. States also define murder differently: what is a murder in one state is not a murder in another. And you cannot appeal to the national government to make something a murder which is not considered a murder based on state law. Only a subset of homicides are federal crimes, such as murders of federal officials or ambassadors, murders taking place on federal property or the high seas, murders designed to influence a court case, and murders that substantially affect national security.[5] Is the Republican Party pro-murder because it doesn’t seek a constitutional amendment to provide a uniform definition of, and punishment for, homicide?
George Floyd’s murder case provides a perfect illustration of how federalism impacts murder laws. In most jurisdictions, murder requires intent: the alleged murderer must have intended to kill his victim. The killing could be premediated (first-degree murder) or spontaneous (usually second-degree murder), but intent is crucial. Minnesota, however, had what is called a “felony murder” law, according to which a homicide can be ruled a murder if the following two conditions are met: (1) the defendant’s actions constituted assault or attempted assault, and (2) the defendant’s actions caused the death of the victim.[6] For instance, if you push a homeowner down the stairs while attempting to rob her house, and she dies, that can be charged as a murder—even if the robber’s intent was merely to move her out of his way so that he could flee.[7]
Now, most people don’t think that Derek Chauvin intended to kill George Floyd. But the jury was convinced that Chauvin’s actions constituted an assault against Floyd that led to Floyd’s death. Thus, he was convicted of felony murder. Many people find this sentence too harsh—in fact, felony murder laws have been criticized all over the place. But that’s federalism.
The parallels with abortion are obvious. From one person’s perspective, Minnesota is defining something as murder which isn’t murder. From another person’s perspective, other states are failing to punish all murders. In the same way, some people think that anti-abortion laws unfairly criminalize actions that are not wrong, whereas other people think that states without abortion restrictions are letting people (literally) get away with murder. But that’s federalism. How to define and punish murder is left to the states, not the national government. In the future, a state may even choose not to punish homicide at all and to simply allow people to kill freely. (They even made a film series about it.) Even that scenario would be perfectly constitutional.
The History of Abortion Restrictions in the United States
So much for theory. What about actual practice? As it turns out, the history of abortion legislation corresponds exactly to my federalism schema.
Prior to Roe vs. Wade (1973), abortion was not a federal crime, and I am not aware that anyone was trying to make it a federal crime. State abortion laws varied regarding the legality of abortion at different stages as well as the legal punishment for committing an illegal abortion. (This is true both before and after the 14th Amendment, by the way.) True, the Comstock Act of 1873 criminalized using either the U.S. Postal Service or a “common carrier” to mail or transport contraceptives, pornography, or information about how to obtain an abortion. (A common carrier is a person or company allowed to act in a semi-public manner to carry things for the public; think UPS.) This law was justified by claiming that sending and receiving mail is a form of “instate commerce,” and thus regulable under the Commerce Clause. Still, the Comstock Act did nothing to ban abortion (or contraception or pornography) in and of itself.
As near as I can tell, the first federal law banning some abortions was the Partial-Birth Abortion Ban Act of 2003, upheld as constitutional by the Court in Gonzoles vs. Carhart (2007). The statue declared that any physician “who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both.” You can clearly see here the awkward shoehorning of the Commerce Clause to justify a federal regulation that that has nothing to do with interstate or foreign commerce. This move only makes sense on the modern, extremely open-ended interpretation of the Commerce Clause which permits virtually any federal legislation. I reject this interpretation as inconsistent with the Constitution’s original meaning, as explained above. Arguably, banning the interstate shipment of abortion pills would fall under the commerce power, but a local medical procedure would not (even if it somehow “affects” interstate commerce). In fact, the Court in Gonzales v. Carhart focused almost solely on whether the law infringed on the alleged right to abortion found in Roe v. Wade, giving no attention to the question of whether the ban itself fell under Congress’s enumerated powers. The dissent written by Justice Clarence Thomas and joined by Justice Antonin Scalia admits that “whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court.”[8] That’s how far federalism has fallen.
In light of these facts, it is wrong to say that a federal ban is the traditional position on abortion in the United States. People seeking to impose a single standard on the entire country, not Donald Trump, are the ones who want to alter America’s constitutional order.
The Fourteenth Amendment
One more issue is at play here. From 1984 until 2024, the means by which the Republican Party sought to criminalize abortion at the national level was the Fourteenth Amendment. Since the 14th Amendment radically altered federalism in the United States, this issue must be addressed.
Section One of the 14th Amendment states:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
How does this apply to unborn persons?
First off, they do not benefit from the so-called “Privileges and Immunities Clause.” The 14th Amendment makes it clear that unborn children are not “citizens” of the United States, because only people “born or naturalized” in U.S. territory are citizens. Not being “born,” unborn children do not enjoy the “privileges and immunities” of federal citizenship.
Now, one can have civil rights without citizenship rights. That’s why the 14th Amendment next states that no state shall “deprive any person of life, liberty, or property, without the due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” (bolded by myself). So: what about the Due Process Clause and the Equal Protection Clause? Since they mention “persons,” not “citizens,” and since I agree that unborn children are “persons,” does the amendment prevent a state from allowing mothers to take the “life” of such a “person”?
The proper interpretation of the 14th Amendment has been the subject of literally hundreds of books, and I cannot do justice to that debate here. But here’s my take on why the amendment does not prevent states from passing abortion regulations (or not). The amendment, passed in the aftermath of the Civil War, aimed to prevent states from enacting discriminatory legislation against blacks. Its purpose was to prevent the laws treating white and black people differently. Laws had to protect equally all people within a state’s jurisdiction. When a state did take someone’s property, liberty, or life, it had to follow “due process of law.” “Due process of law” involves several things. For instance, something would have to be formally criminalized in order to punish anyone for doing or owning it. There would have to be a formal trial that follows established procedural guidelines. That sort of thing. The Due Process Clause does not prevent states from taking away life, liberty, or property—otherwise jail time, taxation, and the death penalty would all be unconstitutional. It merely prevents arbitrary or lawless takings.
The crucial point is that the 14th Amendment doesn’t tell states what their laws must be. It just says that their laws—whatever they are—must apply equally to everyone. A state government cannot pick and choose people to whom the laws do not apply. You cannot allow some people to murder but prevent other people from murdering under similar circumstances. In other words, the Fourteenth Amendment is about equality and non-discrimination, not specific principles that must be enacted by state governments.[9]
This is why states have different laws on a variety of important moral issues. Some states permit marriage between first cousins, while other states prohibit it. Some states define sex between a 17-year-old and a 25-year-old as “rape,” while others would not. (The age of consent ranges from 16 to 18 years old among U.S. states.) Most states would not have defined Derek Chauvin’s killing of George Floyd as “murder,” but Minnesota did. The Fourteenth Amendment does not prevent these kinds of decisions, however unjust some of them may seem. And neither does it prevent states from developing different laws about abortion.
There is a sense, however, in which the 2024 platform’s messaging is inconsistent. By awkwardly referencing the 14th Amendment, Trump’s platform undermines its own seeming endorsement of a federal solution. The 14th Amendment was adopted precisely to restrict state power, not enable it.[10] Thus, if the 14th Amendment has anything to do with fetal life—as the platform’s language implies—it would mean that “No State” shall infringe on the rights of unborn persons. In other words, it requires a federal ban. So why mention the amendment at all? Very likely, Trump and his team know (and care) little about federalism and are just trying to retain some continuity with the previous platform.
Conclusion
To conclude, conscientious social conservatives can support the 2024 Republican Party Platform without worrying about their “pro-life” credentials. Warnings that the platform change represents a dramatic step away from social conservatism are overblown. Abortion and marriage laws were always state issues until the Supreme Court intervened. They should become state issues again. I hope this change will spur greater efforts to walk back the over-centralization of power in this country.
I want to end, however, with a word of caution. Context matters. While the 2024 platform may be defensible, the motivation for the changes may or may not be. I might write another post soon defending political compromise and moderation. It’s perfectly acceptable for a party to tone down an aspect of its ideology—like a federal abortion ban—that will never be passed into law and that offends large numbers of voters. However, one gets the sense that the MAGA wing of the party genuinely doesn’t care much about social conservatism. Trump’s move feels genuine, not strategic. When asked by a reporter whether Trump was moving to the “center” on same-sex marriage and abortion, his son Eric Trump replied that “I think he’s always been there on those issues.” Then he said: “I mean, listen, at the end of the day, this country has real holes in the roof, and you’ve got to fix those holes and you’ve got to stop worrying about the little — you know, you know — spot on the wall in the basement.”[11] Do I think Donald Trump cares about federalism? No. Do I think he’s always been socially progressive and is trying to avoid a repetition of the harm the Dobbs decision did to Republican candidates in the 2022 midterms? Yes.
There’s no reason for social conservatives to abandon ship. They still make up a large part of the Republican base, and Trump is attracting working-class blacks and Hispanics who often have socially conservative instincts. It’s also fair to point out that the neocon and libertarian elites of the (pre-Trump) Republican Party disdained the “religious right” and marginalized their concerns. Still, for better or worse, MAGA is in control now. And that’s a little scary.
[1] Wikipedia, “Police Powers,” https://en.wikipedia.org/wiki/Police_power_(United_States_constitutional_law) (accessed July 18, 2024).
[2] U.S. Constitution, Article 1, Section 8, Clause 1.
[3] U.S. Constitution, Article 1, Section 8, Clause 3.
[4] Wikipedia, “Murder in United States Law,” https://en.wikipedia.org/wiki/Murder_in_United_States_law (accessed July 18, 2024).
[5] Radley Balko, “The retconning of George Floyd,” The Watch,
.
[6] https://www.wklaw.com/10-ways-murder-becomes-a-federal-crime/.
[7] Deena Winter, “Minnesota lawmakers changed felony murder laws, which could mean the release of prisoners,” Minnesota Reformer, November 13 2023, https://minnesotareformer.com/2023/11/15/minnesota-lawmakers-changed-felony-murder-laws-which-could-mean-the-release-of-prisoners/.
[8] Gonzales v. Carhart, 550 U.S. 124 (2007), Thomas, J. dissenting, p. 1.
[9] The exception would again be the “privileges or immunities of citizens of the United States,” which the states must respect. I cannot do justice to the debate over what is included in that, but everyone agrees that it doesn’t not prevent states from defining and punishing murder differently.
[10] Remember, states already possess ample authority to regulate almost anything via the “police power” and other reserved powers.
[11] https://washingtonstand.com/commentary/gop-platform-holes-in-the-roof-spots-on-the-wall-and-cracks-in-the-foundation.
The left column in your comparison has 2016 language for same sex marriage, but 2024 language for abortion (accidental swap of columns).