A Route to a Post-Roe State

By now you have almost certainly heard the good news: last week, a draft of a U.S. Supreme Court majority opinion on a crucial abortion case was leaked to the press. If this draft truly represents the Court’s final decision, then it seems that one of the most ardent dreams of generations of pro-life activists is about to come true: the U.S. Supreme Court is about to completely and unambiguously overturn Roe v. Wade.

Roe v. Wade is, of course, the egregious 1973 U.S. Supreme Court decision in which seven justices somehow discovered a constitutional “right” to abortion nearly two hundred years after the Constitution was ratified.

Since Roe, some 63 million unborn children have been murdered by abortion in the United States – a number so vast that it beggars belief. A whole generation lost. Millions of mothers emotionally, spiritually, and physically wounded. Families devastated. A profound moral evil written into the very fabric of our nation, perverting every aspect of our political system and culture.

The annual March for Life in Washington D.C. coincides with the anniversary of the Roe decision – January 22. Every year for decades now, participants in the March have heard speaker after speaker call for and predict the eventual demise of Roe. And year after year the crowd of tens of thousands has roared its approval, yearning for that moment when our helpless brothers and sisters in the womb might once again be protected in law.

But as the years have passed, there has been discouragement and the growing temptation towards despair. For decades now, Republican strategists have assured pro-life Americans that if only they voted for a Republican president (and for Republican U.S. congressmen and senators), that president would appoint U.S. Supreme Court justices who would drive the proverbial stake into the heart of Roe.

And decade after decade we have been heartbreakingly disappointed. In 1992, for instance, the U.S. Supreme Court was given the ideal opportunity to overturn Roe v. Wade, in the case Planned Parenthood v. Casey. However, instead of overturning Roe, Reagan-appointed Justice Anthony Kennedy joined the pro-abortion majority in upholding Roe.

In his dissent in Casey, pro-life Justice Antonin Scalia lamented at the time, “by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.”

Those words were prophetic. Despite repeated U.S. Supreme Court decisions re-affirming Roe, the abortion issue has never been “settled,” in the way pro-abortion justices hoped it would be. Instead, it has festered on. And now, at a time of immense political and social turmoil, everything has seemingly-miraculously come together in precisely the right way at precisely the right time, creating the conditions for all those decades of pro-life prayer, fasting, and activism to come to fruition.

The US Supreme Court in Washington DC with dark storm clouds

A Legal Sea Change…for Life

The leaked opinion relates to the case Dobbs v. Jackson Women’s Health Organization, which involves a challenge to a 15-week abortion ban in Mississippi. Roe required that states permit abortion up until the point of viability – around 24 weeks’ gestation. The Mississippi law was crafted by pro-life legal analysts precisely in order to push back against Roe’s framework, giving the Court a rare opportunity to revisit Roe.

In speaking about this leaked opinion, which was penned by Justice Samuel Alito, we must keep in mind that this opinion is only a draft. In theory, any of the U.S. Supreme Court justices could change their vote up until the very moment before the Court issues its official ruling, a decision which is expected to happen sometime before the end of June.

Furthermore, the leaked draft was circulated around the Court sometime in February, meaning that it is already three months old. Even if none of the justices change their vote, the text of the opinion itself could significantly change.

With all that said, the draft is noteworthy for two reasons: 1) It is clearly written as a majority opinion, meaning that at the time of its writing, at least five of the justices (including all three of Trump’s appointees) had expressed their support for overturning Roe. Thus, barring any last-minute vote changes, it appears that Roe really is about to be overturned. 2) Rather than seeking some sort of “compromise” position (as some SCOTUS-watchers thought the Court might do), the draft repudiates Roe in the strongest possible terms.

“We hold that Roe and Casey must be overruled,” Alito writes in the draft, adding that “Roe was egregiously wrong from the start.” “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision including the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment.”

The document concludes that, “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

Many pro-life activists and scholars are rightly pointing out that repealing Roe does not mean that abortion will suddenly become illegal. At its core, repealing Roe simply means that the issue of abortion is sent back to the individual states. If a state wants to legalize abortion, it can seek this objective through its legislative process. Similarly, if a state wants to ban abortion, it can do so through the same approach.

In this sense, the repeal of Roe in some respects only marks the beginning of the battle to defend unborn children in the United States. The battleground for the right to life of the unborn will now move to individual state legislatures, where the fighting will, at times, become even more ferocious than before.

However, with that said, pro-life legislators and states have been preparing for this day for years. Many states have either passed so-called “trigger laws” that will completely outlaw abortion the minute Roe is repealed or have kept pre-Roe bans on the books. Those pre-Roe laws will kick into effect as soon as the Court’s final decision is handed down.

All told, if Roe is repealed, abortion will immediately become illegal in at least thirteen states. However, the Guttmacher Institute estimates that as many as 26 states are likely to mostly or completely ban abortion in the wake of the ruling. Although abortion will continue to be legal in many of the most liberal and populous states – including New York and California – the repeal of Roe will usher in a massive sea change in abortion law in the U.S., putting the momentum firmly in the hands of the cause for life.

Yes, Repealing Roe is Popular

It shouldn’t come as a surprise that pro-abortion activists and media have responded to the leaked draft with hysteria and rage.

“This leaked opinion is horrifying and unprecedented, and it confirms our worst fears,” said Alexis McGill Johnson, president and CEO of Planned Parenthood. “We have seen the writing on the wall for decades, it is no less devastating, and comes just as anti-abortion rights groups unveil their ultimate plan to ban abortion nationwide.”

Already some pro-abortion protests have descended into violence, while abortion supporters have begun issuing threats directed at the U.S. Supreme Court justices who support repealing Roe. One verified Twitter user even publicly suggested that murdering Justices Thomas and Alito could “save many women’s lives in the future.”

Many pro-abortion activists and legislators cast the decision as an attack on democracy, claiming that a small number of unelected male judges or religiously-motivated pro-life Americans are “imposing their will” on the American people who, polls show, generally support keeping Roe in place.

The irony here is enormous. After all, Roe v. Wade was originally decided by a small group of unelected male judges, who imposed legal abortion nationwide using legal reasoning that even many pro-abortion legal analysts have admitted amounted to little more than a fig leaf to cover for a pre-ordained conclusion.

Furthermore, a close look at polling data also shows that the facts about public support for Roe are far, far more nuanced than pro-abortion activists are claiming. It is true that when people are asked whether Roe should be repealed, a majority of Americans say no. However, when the question is changed, and people are instead asked whether they support legal abortion in the second trimester, an overwhelming percentage of Americans say no. Roe, however, requires that states legalize abortion in the second trimester!

The confusion, it seems, arises from the fact that many people simply don’t understand what Roe did, or what would happen if it were repealed. Many Americans incorrectly believe that if Roe is repealed, abortion will automatically become illegal all across the United States.

The reality is that public sentiment on abortion has been trending pro-life for years now, with as many people calling themselves “pro-life” as “pro-choice.” Furthermore, when polls drill into the details, they find that a solid majority of Americans are deeply uncomfortable with abortion, and only support it early in pregnancy, and for specific hard cases (pro-lifers must continue to address these issues, since abortion is never to be an option). According to one Gallup poll, only 28% of Americans support legal abortion in the second trimester! In other words, a full 72% of Americans don’t support the specific legal situation created by Roe!

A Route to a Post-Roe State

So much for the supposed majority support for Roe. Not only is repealing Roe more in keeping with Americans’ actual beliefs about abortion, but it is also far more democratic in the sense that it returns the issue of abortion to the people’s democratically-elected officials in their individual states. With Roe gone, pro-life states will have the political freedom to ban abortion, while pro-abortion states can keep it legal.

In reality, of course, even this situation is a blight on democracy, since legalizing abortion amounts to the most egregious violation of the most fundamental democratic right of all – the right to life! But these statistics show that arguments claiming that Americans oppose repealing Roe are simply mistaken.

Continue to Fast and Pray

While there is good reason to celebrate this draft opinion from the Court, we also need to stay focused. In particular, we must continue to fast and pray. Indeed, we should pray and fast more concertedly than before.

Whoever leaked the majority opinion was up to no good. He or she is almost certainly an abortion supporter who hoped that leaking the draft early would create sufficient outrage that it might be enough either to convince one or more of the justices to change their vote, or to gin up an anti-Republican revolt at the polls.

Ultimately, legal abortion is the “golden calf,” the “sacrament” of the culture of death. Legal abortion is the foundation on which the sexual revolution was built. Without institutionalized child sacrifice the culture of death begins to waver and topple. The whole fury of hell is about to descend on the justices who believe Roe must go. They need spiritual protection.

Roe v. Wade was, hands down, the worst U.S. Supreme Court decision in the history of America. Under the Roe regime, tens of millions of the most innocent among us have been slaughtered in procedures that are too gruesome even to describe: suctioned in a bloody mass from their mothers’ wombs; torn limb from limb; killed with lethal injections; partially born, and then their brains vacuumed out; born alive and left to die.

With legal abortion elevated as a constitutional “right,” our whole culture has been re-written around the reality of child-sacrifice. We have normalized and institutionalized the objectification of others. The so-called “dating culture” has become little more than a trade in human flesh, with men and women using one another’s bodies for selfish pleasure, and then in the off chance that their sexual union created new life, that flesh too has been discarded in a sterile “doctor’s” office.

Repealing Roe is the first step on the path towards national healing. It is the first step towards putting our national culture back on firmer foundations – a foundation built on a respect for all human life, on the prioritization of the fundamental values of love, responsibility, respect, and concern for the good of the other.

Yes, even with Roe repealed, our work in the pro-life movement is only just beginning. But we must not underestimate the importance of rejecting the diabolical lie that legal abortion is a constitutional “right.” By repealing Roe, America will once again lead the way, showing the world that the culture of death is not inevitable. What was chosen can be unchosen. Legal abortion is not “progressive.” It is profoundly reactionary. It was a vast historical mistake. And we have the freedom to turn back the clock. To re-embrace life. To right the wrong. To undo the mistake.

And so, while girding ourselves for battle, let us rejoice that, barring any catastrophic last-minute developments, we are on the cusp of the dawning of a new age. Thank God for that.

As president of Human Life International, Fr. Boquet is a leading expert on the international pro-life and family movement, having journeyed to nearly 90 countries on pro-life missions over the last decade. Father Boquet works with pro-life and family leaders in 116 counties that partner with HLI to proclaim and advance the Gospel of Life. Read his full bio here.

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  1. Kip Leitner on May 14, 2022 at 6:03 PM

    I appreciate the feelings expressed here. It’s made me think more about all this. I’m wondering where in Catholic Social Teaching is there discussion of means and ends (?) Because if the goal is an end to abortion, making it illegal isn’t going to end it, and this has been proven decisively in many studies. Women will simply go to underground dangerous clinics. So what’s the Catholic plan here to deal with that ? And you’re not allowed to say we try to “police” abortions clinics. That’s like trying to end war or sex or crime or impure thoughts. Those things don’t work. So what’s the plan?

    • HLI Staff on May 17, 2022 at 2:16 PM

      Kip, you raise an important point and question. Overturning Roe v Wade is a good first step but not the entire solution to fix what ails our culture. Much more needs to be done to teach the fundamental values of love, responsibility, respect, and concern for the good of the other. If the goal is to end abortion, it’s also abundantly clear with more than 63 million children aborted since 1973 keeping abortion legal and available is not the solution. As to your question about whether the means justify the end, the Catechism of the Catholic Church gives a clear answer: The end does not justify the means. (CCC 1759) & There are concrete acts that it is always wrong to choose…One may not do evil so that good may result from it. (CCC 1761). In other words, you cannot buy a new home for your family – a good end – by robbing a bank – an evil means. It’s always wrong to do evil – intentionally kill innocent life – no matter the so-called “good” reason – convenience, failed contraception, suspected birth defect, even rape or incest. It is far more compassionate to assist women and families facing unplanned pregnancy, giving them the help they need to raise their child or to place him by adoption with a willing couple.

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