In an article for Newsweek, JWI Affiliated Scholar and Anchoring Truths contributing editor Josh Hammer outlines the argument for outlawing abortion nationwide. Conservatives debate about whether overturning Roe v. Wade should allow the states to decide whether abortion will be legal in that state, but as Hammer shows, some scholars, such as John Finnis, argue that abortion is unconstitutional and should be made illegal nationwide. As with the issue of slavery, the question that perplexes the debate on abortion is whether the unborn are or aren't persons; here, Hammer sides with Finnis and what we know from modern science. At the very least, Hammer's argument has the strategic effect of shifting the Overton window to the pro-life movement's favor.

Some excerpts from the piece:

"According to Finnis, unborn children are properly understood as "persons" under the 14th Amendment's Equal Protection Clause, and state-level homicide laws therefore cannot discriminate by protecting born people but not unborn people. The upshot under this logic is that overturning Roe and its 1992 successor, Planned Parenthood v. Casey, would not merely return abortion regulation to the ambits of the various states, as earlier conservative legal titans such as the late Justice Antonin Scalia long argued; rather, it would mandate banning the bloody practice nationwide."

"Some notable conservative originalists and pro-lifers have nonetheless opposed this line of argument. For example, the Ethics and Public Policy Center's Ed Whelan—a former Scalia clerk and long-time influencer in the world of conservative judicial nominations—has sparred with both Finnis and Craddock on the question, arguing that the weight of the historical evidence supports the "traditional" originalist perspective that the Constitution is silent on the matter and states may regulate abortion as they please."

"Even holding aside arcane jurisprudential infighting, there are also tactical and strategic reasons why more pro-lifers should support the Finnis position. A greater widespread adoption and public dissemination of the "abortion is outright unconstitutional" argument has the incidental effect of establishing an outer Overton window boundary of permissible opinion on the subject, thus making the Scalia-inspired "states' rights" position relatively milquetoast by comparison. That could relieve some pressure from center-right Justices Brett Kavanaugh and Amy Coney Barrett in the Dobbs case next term, mildly increasing their chances of voting to overturn Roe and Casey and simply reverting the abortion issue to the states."

View the full article at Newsweek here.