The following is contributed by Shannon Wixom.
For almost fifty years pro-abortion advocates have used the U.S. Constitution as decisive proof that women have the right to kill their unborn babies. Perhaps you, like me, are not aware of any part of our Constitution that declares a woman’s right to do this? After all, the first unalienable right of the Declaration of Independence is the right to life. The Fifth and Fourteenth Amendments additionally support that right.
Abortion is Unconstitutional
How did the Constitution suddenly accommodate abortion? The Supreme Court case Roe vs. Wade. In this infamous case, the court recognized that if the unborn were persons, their “right to life would then be guaranteed specifically by the (14th) Amendment.” Sadly, the Court’s answer was no. It ruled that the term “person” in the Constitution did not specifically signify an “unborn” person, and thus unborn humans could not lay claim to its guarantee of life. Having arbitrarily decided that, the Court then interpreted the due process clause and the right to privacy as supporting a woman’s right to end her unborn baby’s life. To understand more about why the Supreme Court’s ruling isn’t defensible, read the article Abortion is Unconstitutional, by John Finnis.
So here we are in 2021, and Roe is still the “law of the land,” according to our current U.S. President and mainstream ideology. With the recent passage of Senate Bill 8, also known as the Texas Heartbeat Act, in which all abortions have been banned after detection of a fetal heartbeat, we find all the usual cries of outrage from the pro-abortion advocates. Here are a few of them:
President Biden: “…an unprecedented assault on a woman’s constitutional rights…”
U.S. Senator Dick Durbin (D-Ill.): “This anti-choice law is a devastating blow to Americans’ constitutional rights-”
Supreme Court Justice Sonia Sotomayor: “…the Act is a breathtaking act of defiance-of the Constitution, of the Court’s precedents, and of the rights of women seeking abortions throughout Texas.”
Jen Psaki: “It’s a woman’s right, it’s a woman’s body and it’s her choice.”
I think you get the picture. The arguments from the pro-abortion side all rely on the Constitution as proof that abortion is a woman’s “right.” None of the arguments dare to define what abortion is: the taking of an innocent human life before it is outside of the womb. Those that say fetuses are persons only when they are viable outside of the womb fail to acknowledge that no human baby is truly viable even outside of the womb (in that it cannot live on its own) without the help of other, more mature human beings, ideally its mother and father.
John Hart Ely, a pro-choice Constitutional scholar, wrote this of the Court’s ruling: “What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure.” He concluded, “Roe is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.” (From Roe is the Problem, by Charles C.W. Cooke.)
Reckoning with Roe
To that end, what is long past needed in our country is a reckoning with Roe. Over the years, a number of states have made valiant attempts to slow the steamrollering of abortion “rights” or ban them in their states. According to the Lozier Institute, “With the Biden administration reversing numerous life-affirming policies, it is clear there is an aggressive abortion agenda in Washington D.C. It is also clear the pro-abortion sentiment in the nation’s capital is not aligned with the views of Americans at the state level. As of May 31, 2021, in 48 U.S. state legislatures, a total of approximately 489 pro-life bills (or bills containing at least one pro-life provision) have been advanced.” (From Overview of U.S. Pro-Life Bills and Provisions Advanced and Laws Enacted from January to May 2021: Pro-Life Banner Year as States Continue to Reject the Radical Abortion Agenda.)
Many of these state bills have been thwarted at the federal level, but the recently passed Texas Heartbeat Act has gained a heady amount of attention because the Supreme Court denied the plaintiff’s application for relief, meaning the bill has not yet been blocked by the Court. This could be due to the creative approach the drafters took in naming private citizens, and not the state, as the enforcers of the law, able to bring civil lawsuits, rather than criminal suits, against abortion providers and others involved in offering abortions, but not the woman having one.
Though perhaps only a temporary win for the pro-life movement, this law has nevertheless begun to save lives due to many of the abortion providers in Texas saying they have now stopped scheduling visits for abortions past six weeks of pregnancy. (See Texas Heartbeat law survives first challenge at SCOTUS by 5-4 vote by Calvin Freiburger.) For now, the threat of a lawsuit is good enough for providers to comply with the law.
Our Best Hope
Currently the best hope to overturn Roe rests with the case of Dobbs vs. Jackson Women’s Health Org., which the Supreme Court has agreed to hear on December 1. The case is a challenge to the constitutionality of a Mississippi law that bars abortions (with some exceptions) after the 15th week of pregnancy. The question the court will consider is “whether all pre-viability prohibitions on elective abortions are unconstitutional.”
C-Fam Vice-President for Legal Studies Stefano Gennarini argues, “The Court should not just overturn Roe v. Wade. It should also declare that protections for children in the womb are consistent with U.S. human rights obligations.” To read the full press release: C-Fam Asks Supreme Court to Declare Abortion is Not an Interational Right.
What Happens if Roe is Overturned?
Let’s be clear about the potential ruling of this case; even if the Supreme Court overturns Roe, abortion in the United States will not be outlawed. Rather, the issue will be returned to each state and they will make their own laws. Some states will legalize it, and some won’t. The voice of the people should aid in determining each state’s laws regarding abortion, not an indefensible interpretation of the Constitution by unelected judges. Mississippi Attorney General Lynn Fitch said in regards to her state’s law, “The Mississippi legislature enacted this law consistent with the will of its constituents to promote women’s health and preserve the dignity and sanctity of life. I remain committed to advocating for women and defending Mississippi’s legal right to protect the unborn.” (From U.S. Supreme Court takes up major challenge to abortion rights.)
Advocating for women and protecting the unborn is the very backbone of the pro-life movement. That’s why it is heartening to find thousands of pregnancy help centers today (which far outnumber abortion clinics) committed to helping women choose life rather than abortion. Along with promoting abstinence until marriage in homes and school health curricula, and the possibility of a reckoning for Roe, there is much good to hope for in regards to our country, and with it the rest of the world, concerning the sanctity of innocent human life.