‘The Lincoln Proposal’

Richard A. Sokerka

With just two months left before the Biden Administration takes office, the pro-life community is acutely aware that the clock is ticking until the time when more stringent attacks on life in the womb will begin.

With the imminent changes the Democrats want to make to strengthen abortion laws even more, Catholic scholars are calling on the Trump Administration to issue an executive order that offers legal protection for the unborn.

In “The Lincoln Proposal,” unveiled Nov. 5 in the journal Public Discourse, several Catholic scholars argue that a presidential executive order protecting unborn children under the Constitution could play a pivotal role in pro-life policy for years to come.

Dr. Chad Pecknold, theologian at The Catholic University of America; Joshua Craddock, former editor-in-chief of the Harvard Journal of Law & Public Policy; and Catherine Glenn Foster, president of Americans United for Life, all collaborated on the proposal.

Craddock, Peckbold and Foster say the executive branch is tasked with preserving and upholding the Constitution and argue that the Supreme Court’s Roe v. Wade decision — which mandated legal abortion nationwide — was flawed. They say a president could act in “correcting Roe’s first and foundational error.”

In the proposal, a president could recognize unborn children as “persons” who are “entitled to due process and equal protection of the laws” under the 14th Amendment.

This act could be taken under the authority of Article II of the Constitution, they said, in the directive to “preserve, protect and defend the Constitution” and to “take care that the Laws be faithfully executed.”

By protecting the unborn as persons, the President would simply be extending Constitutional rights to all people under his lawful authority, they argued.

Although an executive order could easily be overturned by a new administration, Pecknold acknowledged, such an act would at least set up a “litmus test” for other future presidents to abide by and could help underline the extremism of opponents of protections for unborn children.

“If an executive order were in place to protect human life in the womb, Catholics who claim to be pro-life but vote for pro-abortion presidents would have to ask themselves hard questions when their president reverses such an order,” he wrote.

An executive order could be implemented throughout the administration, thus posing “significant legal ramifications for the abortion debate,” Craddock said.

For instance, when courts rule against state abortion restrictions, the Justice Department could come out in opposition. The agency could also investigate permissive state abortion laws.

In diplomacy, the State Department could work to protect unborn children in multilateral treaties. The Food and Drug Administration (FDA) could suspend its approval of the abortion pill. The Department of Health and Human Services (HHS) could withhold assistance to states unless they strip abortion providers of any taxpayer funding.

According to Craddock, the Lincoln Proposal is “a bold new vision to reclaim the executive’s independent role in constitutional interpretation, based on historical precedent, to ensure that the constitutional guarantees of due process and equal protection are extended to preborn persons.”

It is our hope that President Trump signs such an executive order in the waning days of his presidency as a lasting legacy to recognize children in the womb as persons with full rights.