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Roe v. Wade is dead.
The fight for life now turns to the States.
The issue of abortion will be left to the States.
In 1973, the Supreme Court legalized abortion under the auspices of the “right of privacy,” which it held to “encompass a woman’s decision whether or not to terminate her pregnancy.” While we do have rights that are guaranteed to us despite not being in the Constitution (those natural rights), abortion was never one of them. Not until Roe, at least.
It is estimated that more than 63 million babies have been aborted since Roe. That’s more than the combined population of Florida and California. Recent CDC numbers show nearly 630,000 abortions in 2019 – meaning 195 abortions per 1,000 live births.
Abortion has never been a rare procedure since legalization, and the activists who led the fight to legalize abortion for 50+ years prior to (and after) Roe would be proud of that fact. Recall the words of Margaret Sanger, who preferred state-mandated sterilization of populations and races she considered inhuman: “we prefer the policy of immediate sterilization, of making sure that parenthood is absolutely prohibited to the feeble-minded.” Abortion was the means to terminate those who sterilization couldn’t prevent.
From the early days they believed progress required the death of “inanimate ‘unwanted’ children.”1 Leaders such as Dr. Alan Guttmacher, the former president of Planned Parenthood, saw abortion as a necessary tool to “achieve population control on the international stage.”2 He went so far as to support having the UN, via abortion and other measures, slow down the “reproductive rate” of developing countries – those places with what he dismissed as “the black man or the yellow man.”3
What resulted from Roe was, besides 63 million dead and America’s diminishing respect4 for human life, was the elevation of abortion to being a sacred act and a sacred right. Nancy Pelosi, when asked about her support for late-term abortion, described it as “sacred ground.” Planned Parenthood tells us “Abortion is sacred.” This denotes a religious aspect to abortion, with proclamations it is consecrated and holy, to be set apart and held in reverence for the worship of a god or deity. To which gods? The individual and the movement. Or Moloch.
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Thus, any limitation of that practice – the “fundamental right” which promises the woman freedom and “a full and equal role in society”5 – is sacrilege. The exercise of the sacred is righteous and cannot be constrained, justifying the firebombing of pro-life and Christian pregnancy centers across the nation, the advocacy for late-term abortion, then-Virginia Governor Ralph Northam’s support for infants dying after delivery, and their repackaging of infanticide as “perinatal death related to a failure to act.” The individual is given moral latitude to ensure their freedom, and the furtherance of their sacred right, no matter the cost:
“killing a newborn could be ethically permissible in all the circumstances where abortion would be.”6
Just as they deny the humanity of the child, they also twist the meaning and importance of the relationship between the mother and the child. For some, a pregnant woman is “pre-maternal” and has no duty to her “embryonic guest.”7 For others, “terminating a pregnancy should be seen as mothering.”8
Through these rationalizations, they reject personhood and love - those things which make us human and inform how we are to act towards the other. This spares their conscience the guilt of the violent end of this bodily and spiritual relationship. Eliminate or redefine motherhood, subject to the demands of abortion on demand, so the individual can thrive (or, as Janet Yellen prefers, for the benefit of the economy). What they fail to understand is the impossibility of their scheme: you are a parent no matter where your child may be.
This is the conflict of values. What is sacred is not the act of abortion or the right to abort. The sacred is the human form, with its inherent dignity, and the mother-child relationship, both of which were made in His image. The desecration is its destruction.
Of course, there are some “conservatives” who protest the end of Roe. New York Times columnist Bret Stephens argues that conservatism requires the survival of abortion rights:
What is conservative? It is, above all, the conviction that abrupt and profound changes to established laws and common expectations are utterly destructive to respect for the law and the institutions established to uphold it — especially when those changes are instigated from above, with neither democratic consent nor broad consensus.
Stephens and his cohorts - of which there are many - would have unjust laws survive for the sake of the institutions that created them. His philosophy leaves us without tools to counter institutional and cultural destruction. His vision of “conservatism” repudiates Brown v. Board of Education, which reversed the “separate but equal” doctrine that allowed the government to segregated schools and public facilities. Stephens demands moderation in the face of extremism; he would have us revere, and not reverse, the abuse of judicial authority. The status quo takes precedent over what is legally and morally right.
Another term for that is cowardice.
Instead, we must realize that conservatism involves fidelity to the law and trusteeship over current and future generations, including the unborn. The institutions we fight to preserve, whether the family or government, are preserved for them.
That’s a long way of getting to Justice Samuel Alito’s opinion.
The background was essential to help explain the courage in the decision to overturn Roe. This is both a cultural moment and an opportunity for the Supreme Court to put itself on the right path, unencumbered by its previous mistakes. This will define Justice Alito’s legacy. (Remember also the legacy of those who worked tirelessly behind the scenes during confirmations, etc. And of the Presidents who appointed them.) It will also be part of the legacy of each Justice who voted with Alito: Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Especially for Kavanaugh. The false attacks of rape and sexual assault during his confirmation were just a precursor to the current threat to his life - and the lives of his wife and young daughters - by an armed leftist ready to die for abortion rights and gun control.
Then there’s Chief Justice John Roberts. He didn’t join his colleagues in the opinion, and instead concurred in the judgment. He argued the right to abortion, and whether to overturn Roe, should have been left for another time: “there is a clear path to deciding this case correctly without overruling Roe all the way down to the studs: recognize that the viability line must be discarded, as the majority rightly does, and leave for another day whether to reject any right to an abortion at all.”
In other words, Justice Roberts would prefer the Court put off correcting its errors in judgment for another day. The present is inconvenient for him - perhaps he’s more concerned with his legacy and the reputation of the Court than in getting the law right. The majority opinion recognized Roberts’ maneuvering, stating “the concurrence’s most fundamental defect is its failure to offer any principled basis for its approach.”
On the merits, Justice Alito has delivered a thorough and sound opinion, holding that Roe (and Planned Parenthood v. Casey) be overruled because “the Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.” Until Roe, there “was no support in American law for a constitutional right to obtain an abortion. ” Certainly not in “federal or state court.” Thus, “Roe was on a collision course with the Constitution from the day it was decided.”
In response to arguments that abortion is a fundamental right not specified in the Constitution, Alito noted that at the time the 14th Amendment was adopted, “three-quarters of states had made abortion a crime at any stage of pregnancy, and the remaining States would soon follow.” Alito was equally dismissive of the claim that stare decisis requires the survival of Roe:
“Stare decisis . . . does not compel unending adherence to Roe’s abuse of judicial authority. Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”
The dissent from Justices Breyer, Sotomayor, and Kagan was unconvincing and borderline hysterical. They argued the Court now “says that from the very moment of fertilization, a woman has no rights to speak of.” The phrase “no rights” is particularly inaccurate and egregious (maybe that was the point), as pregnant women have the same rights as anyone else.
This isn’t to say that abortion is now illegal. By overruling Roe, the Supreme Court returned “the issue of abortion to the people’s elected representatives.” States will now be free to “regulate abortion for legitimate reasons” – and when these laws are challenged, they will be presumed valid. On the issue of abortion, courts can no longer “substitute their social and economic beliefs for the judgment of legislative bodies.”
There is work yet to be done.
Fisher, Brian. Abortion: The Ultimate Exploitation of Women.
“Our respect for human life is continuous with our desire and capacity to relate to it.” Scruton, Roger. A Political Philosophy: Arguments for Conservatism.
Orr, Judith. Abortion Wars: The Fight for Reproductive Rights.
Giubilini and Minerva. After-birth abortion: why should the baby live?
Kamitsuka, Margaret D. Abortion and the Christian Tradition: A Pro-Choice Theological Ethic.
Kamitsuka, Margaret D. Abortion and the Christian Tradition: A Pro-Choice Theological Ethic.