Bruce Thornton is a Shillman Journalism Fellow at the David Horowitz Freedom Center.
The Supreme Court last week held oral arguments on the Dobbs vs. Jackson Women’s Health Organization case, sparking much commentary about the fate of Roe v. Wade, the landmark 1973 decision that legalized abortion in all fifty states. Pro-life citizens are hopeful that at last a Constitutionally dubious and immoral decision will be reversed. Pro-choice champions are already decrying the unjust calamity that will follow if Roe is overturned.
From the start, the issue of abortion has been politicized by the Left as a question of “women’s rights,” or more honestly, the privileging of one party’s right to choose over another party’s unalienable right to life. Those defending abortion simply ignore this obvious injustice by implying that a fetus somehow is not a “life” in Constitutional terms. Then what is it? Science tells us that a fertilized ovum possessing all the genes that characterize human beings is perforce a living human being. He may be in the early early stages of development, but how does that impair his full humanity? We are changing and developing our whole lives.
But, as supporters usually respond, the fetus is dependent for survival on the mother’s body, and so is not a “life” rightly understood, but something akin to a cyst or tumor that a woman has a right to excise lest her life become complicated and damaged by an inconvenient pregnancy. Her body, her choice.
This dependence has led to the “viability” standard, that point in the child’s development, usually 20-25 weeks, when he can survive outside the womb––a standard, as Chief Justice Roberts pointed out, we share with communist China and North Korea, but few other nations. But making viability the limit on abortion is arbitrary and illogical. A week-old baby is also not “viable,” that is, cannot survive on his own. Why does it make a difference for his innate humanity that instead of the womb and the umbilical cord, he now is dependent on a crib and a breast or bottle?
And why is “viability” so determinative of the legality of abortion, when the lives of the 1.3 million aged in nursing homes, or the severely impaired in care facilities––who likewise lack viability and are dependent on others––are legally protected from termination? Why is one stage of human dependence privileged over another? To be consistent, shouldn’t the logic of the right to an abortion also legitimize euthanizing those we deem “life unworthy of life”?
Next, what does the standard of “viability” for legitimizing abortion have to do with “choice,” the primary principle underlying legal abortion? As Roberts observed last week, “Viability, it seems to me, doesn’t have anything to do with choice. If it really is an issue about choice, why is 15 weeks [the limit set by the Mississippi law under review] not enough time?” Or, I would add, how does that limit create the subjective “undue burden” that the 1992 decision Planned Parenthood vs. Casey proscribed in state regulations of abortion? That limit, which is in the Mississippi law, by the way is the same as or less strict than most abortion laws in Europe, the progressives’ go-to epitome of a civilization much superior and more humane than our own.
No more coherent are the arguments for “choice,” a woman’s right to maintain control over her own body at the expense of another body. Yet until the peace-time draft was abolished in 1973, millions of young men had been conscripted into the armed forces and were legally compelled to cede their control over their own bodies, including the choice not to be subjected to possible death. The higher good that justified the draft and the deaths of draftees in battle was the protection of our collective freedoms and way of life against those enemies who imperiled them.
And aren’t the compulsory vaccine mandates, which sacrifice the “right to choose” what’s injected into one’s own body, rationalized by the claims that such usurpation serves a higher good for our fellow citizens? And didn’t eugenicists and “scientific racists” like Planned Parenthood founder Margaret Sanger justify forced sterilizations and abortion as serving the “higher good” of protecting racial purity and defending against “race suicide”? They weren’t concerned about the “right to choose” of the women forcibly sterilized.
But what higher good does the choice behind most abortions, excepting cases of rape or protecting the mother’s life, serve other than the convenience of the woman, and often the father, making that choice?
Then there’s the Dems’ flabby invocation of the suddenly sacred stare decisis principle, the idea that an established precedent should not be overruled. But universally condemned decisions like Plessy vs. Ferguson (1896), which made unconstitutional segregation laws legal, was overturned by Brown vs. Board of Education (1952), as Justice Kavanaugh pointed out, along with several other cases that ruled against precedents. “If we think that the prior precedents are seriously wrong,” Kavanaugh asked, “why then doesn’t the history of this court’s practice with respect to those cases tell us that the right answer is to return to the position of neutrality?”
And who doubts that should the progressives take control of the Supreme Court, they would throw stare decisis under the bus and overturn decisions they ideologically oppose like Citizens United vs. F.E.C. (2010), which abolished limits on the First Amendment rights of corporations; or District of Columbia vs. Heller (2008), which confirmed that the Second Amendment right to “keep and bear arms” is an individual right, and the government’s limitations of it must face a high bar for Constitutional acceptance?
Given these muddles and the reliance on arbitrary concepts like “choice” and “viability”––ideas that are contested by a wide diversity of opinions and beliefs, and so must be settled with legislation passed by elected officials––it’s no wonder that political propaganda fills the void created by Roe when it shut down the Constitutional mechanisms, such as free political speech and regularly scheduled elections, for adjudicating such passionate debates. Even pro-choice icon Ruth Bader Ginsburg said in 1993, “A less encompassing Roe, one that merely struck down the extreme Texas law and went no further on that day, I believe . . . might have served to reduce rather than to fuel controversy.”
So for nearly fifty years heated, hyperbolic, and bathetic partisan rhetoric has demonized these legitimate reservations. Stale clichés like “turning back the clock” and “back-alley butchers” using “coat-hangers” to perform abortions recur with dreary predictability. But as Michael Barone points out, “At that time [of the Roe decision], there was a widespread move to liberalize abortion laws, which was successful in 17 states comprising 40% of the nation’s population. Some 65% of people lived within a two-hour drive of a state where abortions were legally available.” That’s not such an “undue burden” when the cost of an abortion is a human life. And even if Roe is overturned, abortion will remain legal and accessible in a majority of states, including the half-dozen that allow abortion at any time during the nine months of gestation, essentially legalizing infanticide. Only states where currently few abortions take place might ban them outright.
Finally, there are the duplicitous cries that overturning Roe would politicize the Supreme Court and erode confidence in its decisions, sparking a backlash from voters. During oral arguments Justice Sotomayor both decried the alleged politicizing and warned, “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? . . . I don’t see how it is possible.” Reading from the same script, last year then Senate Minority leader Chuck Schumer threatened Justices Bret Kavanaugh and Neal Gorsuch about overturning Roe, “You have released the whirlwind and you will pay the price! You won’t know what hit you if you go forward with these awful decisions.”
Of course, such bluster is rank hypocrisy. Progressives decades ago politicized the Supreme Court when they began their deconstruction of the Constitution in order to achieve their aim to transform our political order into a technocracy in which power lies not with the diverse people and their elected representatives, but with cadres of unelected federal “experts” like Supreme Court Justices. FDR made this goal obvious when in 1937 he threatened to expand and pack the Supreme Court with more pliant Justices––a threat that worked, for the Court subsequently became more accommodating to Roosevelt’s unconstitutional expansion of the federal government both in reach and power.
And it bespeaks shameless hubris to make such claims of “politicization” about Roe, given that the decision had nothing to do with the Constitution, which says nothing about abortion, and everything to do with feminist ideology and political aims. That’s why rather than Congress seeking to pass legislation legalizing abortion, the Court usurped Congress’s lawmaking powers and legislated from the bench. Since then Roe has stood out as the most famous example of progressives’ anti-Constitutionalism: unelected and unaccountable Justices, tenured for life, who usurp the Constitution’s Article I provision that Congress alone has the power to legislate laws.
Roe v. Wade remains an affront to the Constitution and the unalienable right to life that is part of our country’s political foundations. It needs to be overturned. Such contentious disputes over foundational beliefs should be adjudicated at the state level, where lawmakers are more directly accountable to the citizens––the bulwark of our political freedom.