The James Wilson Foundation on Natural Rights and the American Founding

“A Post-Roe Legislative Agenda for Congress” — Josh Craddock in Public Discourse

by James Wilson Institute on June 1, 2022

Josh Craddock, a 2019 James Wilson Fellow, introduces a strategy for pro-life congressmen to follow after the overturn of Roe v. Wade. He establishes that Congress’ definition of personhood lies at the root of the abortion issue and must include unborn children. Craddock then argues that Congressmen must preserve the definition of personhood from the federal courts’ jurisdiction. Afterward, he suggests taxation as a sound method to prevent the growth of the abortion industry.

We have included a few excerpts below for your perusal.

“In addition to legislation that tangibly supports families and expectant mothers, legislators should introduce strong anti-abortion legislation that recognizes the personhood of the unborn, strips federal courts of jurisdiction over the statute, and empowers individuals to enforce it through a private right of action. And if such strong medicine is too politically impracticable, pro-life legislators should at the very least tax abortion providers and abortion-pill manufacturers as a mechanism for promoting a pro-life social policy.”

“Thus, Congress should enforce the constitutional guarantees of due process of law and equal protection of the laws for unborn children nationwide, barring states from giving effect to permissive abortion laws. Such legislation could provide, for example, that no state or person acting under state law (or in interstate commerce, as an alternative basis) may discriminate on the basis of whether a human being has been born. The law should specifically apply to any state prohibition against homicide, and require that any person who commits an abortion shall be subject to the same or comparable penalties as exist under state law for other homicide cases.”

“Sadly, because pro-lifers cannot rely on prosecutors or the administrative state to enforce their legislative preferences, it is good policy to deputize the public to help ensure compliance with Congress’s pro-life legislation. To forestall non-enforcement, Congress should confer on private individuals a cause of action to sue any person—including any federal, state, or local official—acting under state law or in interstate commerce to deprive an unborn child’s rights secured by the Fifth and Fourteenth Amendments (and statutes enforcing those amendments).”

“A bill with these three features would have an important messaging and educational purpose. But of course such a bill would be unlikely to achieve the sixty-vote Senate threshold to avoid the filibuster and achieve cloture, even after the 2022 midterm election (much less survive a presidential veto). So in the meantime, another tack is warranted: pro-life legislators should levy a tax on abortion providers. This provision could be enacted into law with fifty-one Senate votes through the reconciliation process, and could be added to must-pass legislation.”

To read the essay in its entirety, please click here.

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Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.
— James Wilson, Lectures on Law, 1790