The Push to Reverse Roe v. Wade

Shenan J. Boquet
August 9, 2021
Reproduced with Permission
Human Life International

"If the right to life is an inherent and inalienable right, it must surely exist wherever life exists. No one can deny that the unborn child is a distinct being, that it is human, and that it is alive. It is unjust, therefore, to deprive the unborn child of its fundamental right to life on the basis of its age, size, or condition of dependency. It was a sad infidelity to America's highest ideals when this Court said that it did not matter, or could not be determined, when the inalienable right to life began for a child in its mother's womb."

-- Mother Teresa in a 1994 amicus brief to the U.S. Supreme Court, urging the Court to overturn Roe v. Wade

" Roe and Casey are egregiously wrong. The conclusion that abortion is a constitutional right has no basis in text, structure, history, or tradition."

This strongly worded statement appears in a remarkable legal brief filed at the end of July by Mississippi's attorney general. In that brief, the state of Mississippi urged the Supreme Court to overturn the Roe v. Wade and Planned Parenthood v. Casey decisions.

As I'm sure you know, both of those decisions require states to allow abortion on demand up to the point of viability - that is, the point when the child can survive outside the womb. Right now, however, the state of Mississippi is fighting at the Supreme Court to uphold a state law that bans abortion after fifteen weeks, except in cases of medical emergency and severe fetal abnormality. (Of course, we do not believe in abortion for any exceptions.)

The state's only abortion facility, Jackson Women's Health Organization, has challenged that law in court, claiming that it violates Roe v. Wade . In 2019, the 5th U.S. Circuit Court of Appeals sided with Jackson Women's Health Organization, striking down the law. However, the state appealed to the Supreme Court.

Mississippi is arguing that even if the law violates Roe v. Wade (which it does), this only goes to show that it is time for Roe v. Wade to go. In the legal brief, the state argues that Roe 's tortured discovery of a Constitutional "right to abortion" hidden in a non-Constitutional "right to privacy" has unleashed legal chaos.

"The Constitution does not protect a right to abortion," notes the brief. "The Constitution's text says nothing about abortion. Nothing in the Constitution's structure implies a right to abortion or prohibits States from restricting it."

As such, the only proper and defensible response, argues the brief, is to finally revisit Roe and admit once and for all that its legal reasoning was wrong. "This Court should hold that a State may prohibit elective abortions where, as here, a rational basis supports doing so. The Constitution does not protect a right to abortion or limit States' authority to restrict it."

The pro-life law in question, argues Mississippi, clearly fulfills the requirement for a "rational basis," since it "rationally furthers valid interests in protecting unborn life, women's health, and the medical profession's integrity."

Growing Momentum

It is incredibly refreshing to read a legal brief from a U.S. state that avoids the tiptoeing, euphemisms, and shiftiness that too often characterize the interventions of lawyers and politicians on the abortion issue.

Over the years, I have seen how easily even pro-life politicians fall into the trap of thinking that they must "tone down" their pro-life views, or play verbal games, in order to get anything done. While it is true that there are occasions when prudence demands a certain amount of discretion, there is also a great deal to be said for the courageous and confident defense of moral truth in the public square.

Indeed, the success of progressives in advancing their causes in the public square is often directly correlated to their willingness to boldly stake out unpopular positions, knowing that what is unpopular today can be made popular tomorrow by projecting confidence in the uprightness of their position.

Fortunately, there appears to be a huge groundswell of outspoken support within the political establishment right now for undoing the great wrong of Roe v. Wade . For the first time in years, it appears that the pro-life cause has a real chance of succeeding at the Supreme Court.

In another legal brief , almost 230 Republican members of Congress, including Senate Minority Leader Mitch McConnell, urged the Supreme Court to overturn Roe and end the decision's "vise grip on abortion politics." "Congress and the States have shown that they are ready and able to address the issue in ways that reflect Americans' varying viewpoints and are grounded in the science of fetal development and maternal health," the Senator stated.

And in yet another legal brief , 24 different state attorneys general also asked the High Court to overturn Roe . "This Court has propounded a constitutional law of abortion for half a century, and no one can describe it with any certainty," the states wrote. "Because the purported right to abortion lacks any textual or historical foundation, it is defined only by the Court's constantly changing opinions."

"Time has not lessened the belief that unborn life deserves protection," they added. "People of good conscience will always disagree on this issue, and the Court's attempt to settle it has failed."

In yet another legal brief , 12 different state governors also asked the Court to overturn Roe . The governors argued that the abortion issue is much better left to the states, and that the "judicial constitutionalization of abortion represents an unwarranted intrusion into the sovereign sphere of the States."

The Time to Overturn Roe Has Come

This show of strength from pro-life states and politicians asking the Supreme Court to overturn Roe is truly extraordinary. I'm not sure I recall another instance quite like it.

Naturally, pro-abortion activists are responding by attempting to paint the politicians supporting overturning Roe as anti-choice extremists. In a statement , McGill Johnson of Planned Parenthood Action accused the pro-life governors of seeking to "deny their citizens the freedom to make their own personal health care decisions."

In reality, however, polls consistently show that a strong percentage of the American public supports restricting abortion to earlier in pregnancy, something that Roe does not allow. According to one recent poll , 65 percent of Americans believe that most or all second-trimester abortions should be illegal. (As a side: I am not suggesting we let polls determine the future of abortion. This crime must stop, and life must be protected from conception to its natural end. I simply mention the polls to express that Americans are more and more opposed to the violence of abortion.) Constrained by Roe , however, state legislators are unable even to pass laws that reflect the public consensus on this issue, let alone defend the universal right to life of all unborn children.

Supporters of Roe are attempting to claim that the decision is protected by the legal doctrine called Stare Decisis . Basically, Stare Decisis holds that court decisions that have been in place for a sufficiently long time, and which have been upheld by subsequent decisions, gain a level of legal weight which means that they should not be overturned.

However, as various pro-life legal scholars have been pointing out, not only was it clear to many lawyers at the time that Roe v. Wade was supported by risibly poor legal arguments, but also things have radically changed since 1973, when it was handed down. Stare Decisis may be a useful legal guideline , but it would be a huge mistake to invoke it to defend egregious legal errors.

In the first place, the science of embryology has advanced by leaps and bounds. In the 21st century, with high-definition, live, 3D ultrasounds, and with the ability to take photos of the unborn child, and even to perform life-saving surgery in utero , the "blob of tissue" line has been exposed as the canard it always was.

Furthermore, in 1973 few children born before 28 weeks could be expected to survive. Since then, the point of "viability" has dropped precipitously, with some children now surviving when born well before 24 weeks. What this means is that the court's "viability" requirement essentially grants the right to life to unborn children based in significant measure upon how advanced our prenatal health care is. The better we get at caring for children born earlier and earlier, the more children we can save.

But how is that fair? And how is that a rational basis to confer the most fundamental right of all? The answer, of course, is that it's neither fair nor rational. Roe never was. The decision was a legal fabrication that began with Griswold v. Connecticut 's (1965) invention of a "right to privacy," and built upon a Constitutional fiction whose only effect was to discriminate against the weakest and most defenseless American citizens, our unborn children. And it's time for it to go .

Please God this is the beginning of the end for Roe . No, overturning Roe will not be the end of the war. There will be no end this side of heaven. Men and women of good will always be needed to fight the agents of the culture of death, which will always be with us. But overturning Roe would mark a watershed moment, a definitive turning back from our nation's path of destruction.

With Roe gone, we will be able to push towards the finish line: ensuring that this great nation of ours protects all human beings from the moment of conception to natural death. Join me in praying for courage for our Supreme Court justices to do the right thing.