Is the tyranny of Roe v. Wade in the United States about to fall?
For the first time in years, pro-lifers have serious reason to hope that the aim towards which they have worked for so many decades – the end of Roe v. Wade – will finally come about, and as soon as next year.
A few days ago, the United States Supreme Court agreed to hear Dobbs v. Jackson Women’s Health Organization. This case – called a “blockbuster dispute” by CBSNews – involves a challenge against a Mississippi law (The Gestational Age Act) that bans abortion after fifteen weeks, except in cases of medical emergency and severe fetal abnormality. The challenge was filed by the state’s only surviving abortion facility.
So far, lower court judges have blocked the Mississippi law from going into effect, citing the 1973 Roe v. Wade case, which legalized abortion-on-demand in the United States. Roe v. Wade, and subsequent SCOTUS decisions, have consistently upheld the “right” to abortion pre-viability – that is, before the time when the child can survive on his own outside his mother’s womb. So long as Roe stands, states are prohibited from enforcing any restrictions on abortions pre-viability.
That hasn’t stopped states from passing such laws anyway. In fact, almost a dozen states have so-called “trigger laws” on the books, which would completely ban abortion the moment Roe v. Wade is overturned. Others have passed “heartbeat” laws (including Texas, just last week), which would ban abortion from the moment an unborn child’s heartbeat can be detected. However, to date, none of these laws have been allowed to go into effect, because of Roe.
The Mississippi law, by banning abortion after 15 weeks, clearly challenges the viability requirement. And that’s the point. Mississippi’s own attorney general has urged the high court to review the challenge against the law, arguing that the viability requirement, “is increasingly out of step with other areas of the law, rejects science and common sense, and is shaky precedent at best.”
According to the Alliance Defending Freedom (ADF), whose lawyers are involved in the case, the state will argue that “‘viability’ is an arbitrary standard for determining when a state’s interests are sufficient to regulate” abortion.
“Thanks to amazing progress in scientific research and medical technology, the concept of ‘viability’ is an ever-moving target as younger children have survived and thrived after preterm birth,” said ADF Senior Counsel and Vice President of Appellate Advocacy John Bursch last week. “But ‘viability’ has never been a legitimate way to determine a developing infant’s dignity or to decide anybody’s legal existence. The high court should take this important opportunity to resolve the conflicts between its previous rulings and affirm the constitutionality of Mississippi’s law.”
The ‘Best Opportunity’ to Overturn Roe
Pro-abortion advocates are already expressing outrage and outright terror over the Court’s decision to hear the case. In a statement last week reacting to this decision, Nancy Northup, President & CEO of the Center for Reproductive Rights, said that overturning Roe would be “devastating.” Northup noted that with Roe overturned, “Over 20 states would prohibit abortion outright.”
Northup and other abortion advocates have good reason to be worried.
As legal experts are already pointing out, the mere fact that enough of the justices agreed to hear the case (at least four have to do so, in order for the case to move forward) shows that a sizable number of the justices are at least sympathetic to arguments that Roe must be revisited.
Over at The Dispatch, lawyer David French writes that “the most compelling reason for the emotional reaction is simply this—if the court didn’t want to do something dramatic with abortion jurisprudence, it could have simply left the case alone. It could have denied cert and let the case die.”
They didn’t. And with President Trump having appointed three justices to the court, there is reason to hope that among the six at-least-moderately conservative justices now on the court, there are enough with the courage and conviction to revisit and overturn the absurd and flagrantly unconstitutional reasoning that underpins Roe.
However, while the court’s decision to hear this case is enormously encouraging news, it is far too early to celebrate.
Legal abortion is one of the most ferociously defended planks of the left’s political platform. The Biden-Harris administration is easily one of the most – if not the most – radically pro-abortion administrations in U.S. history, and will no doubt do everything in their power to promote their preferred outcome at the court.
Furthermore, this is not the first time that conservatives have hoped that GOP-appointed justices would overturn Roe. On previous occasions – e.g., Planned Parenthood v. Casey – our hopes have been cruelly dashed.
Over at National Review, Ed Whelan has argued that this case may be the “best opportunity the Supreme Court will ever have to overturn Roe.” Matt Purple, writing at The American Conservative, agrees. Dobbs v. Jackson Women’s Health Organization is, he writes, “the big one.” However, adds Purple, this case may also mark the Court’s last chance to overturn Roe.
As Purple notes, if the current Court, with its six conservative justices, many of them still quite young, still upholds Roe, further cementing decades-old judicial precedent, it is difficult to imagine any future justices having the courage to revisit the case, and to do the right thing. At least, not any time soon.
In other words, the stakes could not be higher.
Roe Must Go!
According to many news articles, the case will be heard sometime this fall, and a decision is likely to be handed down next spring or summer.
The court’s decision to accept this case has given pro-lifers reason for hope, but also a great deal to fast and pray about. For decades now, Roe v. Wade has been the law of the land, removing all human rights protections for unborn children pre-viability, and in many cases all the way up to birth. The result has been untold millions of aborted children, and wounded mothers and fathers.
Legal abortion contradicts everything that the U.S. founders aimed to protect and defend. “We hold these truths to be self-evident,” they wrote in the Declaration of Independence, “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” (emphasis added)
Of these three unalienable rights, the right to life is the most fundamental. Without the right to life, there can be no right to liberty or the pursuit of happiness. The justices who discovered a “right” to abortion in the U.S. Constitution were guilty of an act of naked judicial activism. The consequences of this tyrannical decision have been incomprehensibly destructive.
As Pope St. John Paul II wrote in Evangelium Vitae:
“The moral gravity of procured abortion is apparent in all its truth if we recognize that we are dealing with murder and, in particular, when we consider the specific elements involved. The one eliminated is a human being at the very beginning of life. No one more absolutely innocent could be imagined. In no way could this human being ever be considered an aggressor, much less an unjust aggressor! He or she is weak, defenceless, even to the point of lacking that minimal form of defence consisting in the poignant power of a newborn baby’s cries and tears. The unborn child is totally entrusted to the protection and care of the woman carrying him or her in the womb. And yet sometimes it is precisely the mother herself who makes the decision and asks for the child to be eliminated, and who then goes about having it done.” (no. 58)
However, responsibility for this great crime also “falls on the legislators [and judges!] who have promoted and approved abortion laws, and, to the extent that they have a say in the matter, on the administrators of the health-care centers where abortions are performed.” (EV, no. 59)
For governments and legislative bodies to make intrinsically evil actions legal is unconscionable. Thus, those who have the duty to formulate law have an obligation in conscience to work toward correcting morally defective laws, as Pope Benedict XVI emphasized in 2005 during a meeting with the Presidents of the Episcopal Commissions for Family and Life of Latin America: “In attacking human life in its very first stages, it [abortion] is also an aggression against society itself. Politicians and legislators, therefore, as servants of the common good, are duty bound to defend the fundamental right to life, the fruit of God’s love.” Failing to safeguard the lives of innocent and defenseless unborn children and ignoring their duty to correct such an injustice, politicians and legislators are, thus, guilty of cooperating in evil and in sinning against the common good.
In their document, Living the Gospel of Life, the U.S. bishops remind us of the unique and irreplaceable role Catholics play in defending and serving human life, especially those holding public office:
“Catholics who are privileged to serve in public leadership positions have an obligation to place their faith at the heart of their public service, particularly on issues regarding the sanctity and dignity of human life.” (no. 30)
They also offer a word of warning and fraternal correction:
“We urge those Catholic officials who choose to depart from Church teaching on the inviolability of human life in their public life to consider the consequences for their own spiritual well being, as well as the scandal they risk by leading others into serious sin.” (no. 31)
“We call on them to reflect on the grave contradiction of assuming public roles and presenting themselves as credible Catholics when their actions on fundamental issues of human life are not in agreement with Church teaching. No public official, especially one claiming to be a faithful and serious Catholic, can responsibly advocate for or actively support direct attacks on innocent human life…no appeal to policy, procedure, majority will or pluralism ever excuses a public official from defending life to the greatest extent possible. As is true of leaders in all walks of life, no political leader can evade accountability for his or her exercise of power (Evangelium Vitae, 73-4). Those who justify their inaction on the grounds that abortion is the law of the land need to recognize that there is a higher law, the law of God. No human law can validly contradict the Commandment: ‘Thou shalt not kill.’” (no. 31)
In 1976 during the Eucharistic Congress held in Pennsylvania, Pope St. John Paul II, then Cardinal Karol Wojtyla, prophetically stated that “we are now standing in the face of the greatest historical confrontation humanity has gone through.” The would-be pope and saint further stressed that we are “facing the final confrontation between the Church and the anti-Church, of the Gospel versus the anti-Gospel.”
It is undeniable. We are engaged in a confrontation between two diametrically opposed forces. As Wojtyla emphasized, “it is a trial of not only our nation and the Church, but, in a sense, a test of 2,000 years of culture and Christian civilization with all of its consequences for human dignity, individual rights, human rights and the rights of nations.”
In the months ahead, we must keep our eye on the truth, firmly committing to speak out and defend the right to life of all persons, no matter their age or any other characteristics, and no matter how fierce the opposition. We must also ardently fast and pray for those serving in public office and for the right outcome to this once-in-a-lifetime court case, which could alter the future of the United States for the better, contributing to creating a true Culture of Life.
May we live to see the United States finally become a pro-life nation, setting an example for the whole world of how it is possible to reverse course and right the great wrong of legal abortion.
Roe must go!