Roe v Wade in the ash heap of history!
Grievous wrong righted after half a century, but more work needed
5 July 2022; last updated 14 Nov 2023
“When justice is done, it is a joy to the righteous but terror to evildoers” (Proverbs 21:15).
24 June 2022 was a day of rejoicing for all those who care about the sanctity of innocent life. The US Supreme Court case Dobbs v. Jackson Women’s Health Organization resulted in the overturning of the notorious Roe v Wade (1973) ruling.1 Roe invented a right to abortion ostensibly in the US Constitution, which abolished all State laws that restricted abortion. Dobbs also overturned Planned Parenthood v. Casey (1992) that upheld this ‘right’, although changed many of the details.
Roe made the USA one of the least safe countries in the world for unborn babies. Unthinkably, the most dangerous place to be was in the mother’s womb, which God designed to be the safest place. Repealing Wade does not provide total protection for unborn babies against abortionists’ knives and vacuum cleaners, but it does allow states to protect them.
CMI, a totally pro-life organization, joins in this rejoicing, as per the verse cited at the top. Similarly, many American church bells tolled to celebrate the Emancipation Proclamation in 1863 that abolished slavery. We fail to see the need to ‘commiserate with those “hurting” after this decision’. To be blunt, we do not sympathize with those upset that they no longer have a ‘right’ to chop up a baby in the womb, any more than we would commiserate with slave-traders in 1863.2
But we do sympathize with the ~63 million babies killed since Roe, and with many mothers who regret their abortions. Abortion became a cultural norm and many were swept up in this way of thinking. We also remind everyone that abortion is not the unforgivable sin3—Jesus’ death and resurrection pays the penalty for all sins a believer has committed.
The real issue: what is the unborn?
Pro-abortionists demonstrating the overturning of Roe with placards such as ‘Hands off my body’ or ‘Womens’ rights’ etc. totally miss the point. The overwhelmingly most important issue is whether the unborn baby is a human being. And if it is, then he/she also has rights. As we have pointed out, almost all arguments for abortion fail against what I call the ‘Two-year-old test’. That is, simply substitute ‘two-year-old’ for unborn baby in the argument. This brings us back to the only issue that matters: if the baby is human, whether in the womb or two years old, it is wrong to kill.
Medically, a lot has been learned since the original Roe decision. The science is now very clear: a birth changes where the child is, not what the child is. Just about all pregnancy guidebooks and web pages refer to the unborn as a “baby” or “child”. This cannot change because the unborn is ‘inconvenient’ or ‘unwanted’. However, abortion extremists argue as if a clump of cells in the womb becomes a child with rights only after she passes completely through the magical birth canal.4
CMI ‘follows the science’. Real science, including genetics, affirms that individual life of humans (and all sexually reproducing organisms) begins at conception aka fertilization, as almost all embryology textbooks affirm 5 This is a scientific fact not a ‘religious’ claim, which is why there is such an organization as Secular Pro-Life, led exclusively by atheistic women.6 We have previously cited conservative journalist and author Ramesh Ponnuru:
In truth, it is no more “religious” to claim that six-month-old fetuses should not be killed than it is to claim that teenagers should not be killed. A government that acts on the claim about fetuses is no more “theocratic,” by virtue of its having done so, than a government that acts on the second claim. A government that generally bans abortion does not thereby take a position on whether the fetus has a soul, any more than it takes a position on whether thirty-five-year-olds have souls by banning their killing.
Humanity of the unborn: necessary but not sufficient
Some misguided creationists have claimed that the humanity of the unborn ‘is not the issue’, rather it is solely the authority of the Bible. But how can we appeal to the Bible’s prohibition of murder unless the subject of the prohibition is human? So this is an important point to defend.
Of course, science can’t decide whether murder is right or wrong; the Bible is very clear that it’s wrong. Fortunately, at least for now, most non-Christians oppose murder, including the group Secular Pro-Life. So demonstrating that the unborn is a human being is still a vital part of pro-life arguments and has won many to become pro-life.7 See the Related articles and Further reading below the article for more information.
And we surely know far more about embryonic development and genetics now to confirm the humanity of the unborn from conception. But even when ‘quickening’ was the best evidence, the law in both the UK and USA recognized that the unborn should be protected. Even the 19th century feminists and Planned Parenthood founder Margaret Sanger denounced abortion as killing a child.
However, now there is still widespread support for abortion, even in the medical profession who know the truth. For instance, the American Medical Association has basically become a politicized trade union in its disgraceful reaction to Dobbs:
The American Medical Association is deeply disturbed by the U.S. Supreme Court’s decision to overturn nearly a half century of precedent protecting patients’ right to critical reproductive health care. This is an egregious allowance of government intrusion into the medical examination room, a direct attack on the practice of medicine and the patient-physician relationship, and a brazen violation of patients’ rights to evidence-based reproductive health services.
In alignment with our long-held position that the early termination of a pregnancy is a medical matter between the patient and physician, subject only to the physician’s clinical judgment and the patient’s informed consent, the AMA condemns the high court’s interpretation in this case.
Sharp political divisions have always clouded the issue of abortion and made substantive conversations difficult. What cannot be argued is that abortion is a component of reproductive health care, and that by allowing states to restrict or outright ban these services, we are putting the health and welfare of people seeking abortions in jeopardy.
AMA policy recognizes that our members’ individual views on abortion are determined by their own values and beliefs, and supports patients’ access to the full spectrum of reproductive health care options, including abortion, as a right.8
But one can look in vain in that statement for the slightest mention of the medical fact that abortion chops up a human baby. But this shows just that the AMA has divorced itself from science and morality in favour of ideology. And even organizations of pediatricians, doctors who treat children, and midwives, who deliver babies, are fine with chopping up those children in the womb.9
So what has changed? Once, just about everyone understood that murder is wrong. However, while science can tell us that the unborn is a human being, it can’t tell us it is wrong to commit murder. If we are rearranged pond scum, then why should murder be wrong? Why is killing a baby any different from killing a colony of bacteria? The educational system has indoctrinated students, including with deliberate deception, into a secular, evolutionary mindset which, being predicated on death of the unfit, can’t provide any basis for murder being wrong. So we have seen a move away from the sanctity of life.
This is also not the first time that the medical profession can turn deadly without a proper moral framework. Physicians were willing participants in Nazi experiments on humans, eugenics, and extermination. And “the first Nazi mass murderess was not the concentration camp guard but the nurse. Of all the female professionals, she was the deadliest.”10
This shows that the humanity of the unborn is a necessary but not sufficient condition for a logically sound pro-life argument. This doesn’t mean that we don’t appreciate groups like Secular Pro-Life for their strong stand against abortion. Au contraire, we appreciate their powerful case for the humanity of the unborn, and they reasonably state:
We simply ask that all people who believe, as a baseline premise, that it’s wrong to kill each other apply that stance consistently and recognize preborn children as part of the human family.
Secular Pro-Life even co-authored an amicus curiae (“friend of the Court”) brief in favour of repealing Roe, which Justice Alito cited with approval.11 So I have no problem with considering them as “co-belligerents”12 in the fight to protect the unborn, just as Christian and atheist soldiers fought together in WW2 against Nazi Germany.
But too many in the secular academic and political elite now reject the sanctity of innocent human life.4 Judging by some of the vicious responses to the ruling, this rejection has permeated more of society than Secular Pro-Life thinks.
The case was officially about Mississippi’s Gestational Age Act:
“Except in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform . . . or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.”
Gestational age was defined as the time since the pregnant woman’s last menstrual period. But an abortion mill calling itself Jackson Women’s Health Organization, plus one of its abortionists, challenged the bill. The Fifth Circuit Court of Appeals struck down the law, because it conflicted with Roe (and Casey), so Mississippi appealed to the Supreme Court. It argued that this state has a legitimate interest in protecting unborn lives, and that Roe and Casey were wrongly decided. 26 states joined in the appeal, asking that Roe and Casey should be repealed.
Even the 15 weeks was a compromise. Life begins at conception. But the legislators compared the 15 weeks with the fact that Roe made America an outlier to permit abortion on demand after 20 weeks, which few countries do. In fact, even Mississippi’s law was quite permissive by world standards:
“In fact, fully 75% of all nations do not permit abortion after 12 weeks’ gestation, except (in most instances) to save the life and to preserve the physical health of the mother.”13
The current Solicitor General joined with the abortionists. They agreed that “no half measures” were possible, i.e. restricted to Mississippi. SCOTUS (Supreme Court of the United States) needed either to reaffirm or overrule Roe.
The ruling made a choice of reaffirming or overruling, as both sides requested. The decision was to overrule in a 5–1–3 decision. As per the illegal leak, Justice Samuel Alito, appointed by President George W. Bush, wrote a very detailed and tightly argued decision. He was supported by Justice Clarence Thomas, appointed by President George H.W. Bush, and Justices Amy Barrett, Neil Gorsuch, Brett Kavanaugh, appointed by President Donald J. Trump. Justices Kavanaugh and Thomas wrote separate concurring opinions. All these judges have a reputation for originalism, i.e. interpreting the Constitution and laws in their original public meaning. This is similar to how CMI advocates interpreting the Bible, i.e. exegesis, reading meanings out of Scripture as originally understood.
Chief Justice Roberts, appointed by President G.W. Bush, concurred in the judgment. That is, he voted for upholding the Mississippi law, but not for overturning Roe v Wade.
The so-called liberal wing of the Court dissented, as expected. This wing comprises Justice Stephen Breyer, appointed by President Bill J. Clinton, and Justices Elena Kagan and Sonia Sotomayor, appointed by President Barack H. Obama. The liberal wing has also been described as supporting a ‘living Constitution’ theory, which in practice means reading desired outcomes into the Constitution. This is similar in principle to the eisegesis—reading meanings into the text—beloved by long-age compromisers and theistic evolutionists.
This also returns to the worldview issue above. The three dissenting Justices have a record of anti-Christian animus. In a few cases just before Dobbs was handed down, they dissented on several cases involving the rights of Christians:
- Kennedy v. Bremerton School District: 6–3 decision affirming the right of a government school coach to engage in personal religious observance (in his case, prayer) in public but on his own time, without government reprisal.14
- Carson v. Makon: where Maine offered tuition assistance for parents with no available government high school in their district, so they could send their kids to a private school of their choice. But Maine banned parents from choosing a religious school. But the court ruled that Maine was not obliged to subsidize private education, but because it chose to do so, it could not discriminate against religious schools.15
But to be fair to them, even the liberal three justices occasionally uphold Christian freedoms. In Shurtleff v Boston, The Supreme Court ruled unanimously that Boston violated the Constitution by excluding a Christian flag on one of three flagpoles reserved for private groups. Justice Breyer authored the main opinion. Justice Kavanaugh in a brief concurring opinion wrote, “a government may not treat religious persons, religious organizations, or religious speech as second-class.”16
Justice Alito’s final ruling was similar to the leaked draft, but he added responses to both the Concurrence-in-judgment and the Dissent. The ruling was a real tour-de-force, covering laws on abortion in American and British history, historic legal commentaries, updates to science and social changes, and the incredibly weak ‘reasoning’ in Roe to invent a Constitutional right to abortion.
Justice Alito recognized that abortion was a very different issue from the other comparisons. He recognized that opponents of abortion are motivated by wanting to protect a human life inside the womb:
… abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called “fetal life” and what the law now before us describes as an “unborn human being.”
Alito cited some pro-abortionists claiming that pro-lifers really just wanted to control women, but he rejected that as bad-faith arguing. He noted that even the Roe and Casey ruling recognized the good faith of abortion opponents. Also, he pointed out:
Americans who believe that abortion should be restricted press countervailing arguments about modern developments. They note that attitudes about the pregnancy of unmarried women have changed drastically; that federal and state laws ban discrimination on the basis of pregnancy; that leave for pregnancy and childbirth is now guaranteed by law in many cases; that the costs of medical care associated with pregnancy are covered by insurance or government assistance; that States have increasingly adopted “safe haven” laws, which generally allow women to drop off babies anonymously; and that a woman who puts her newborn up for adoption today has little reason to fear that the baby will not find a suitable home. They also claim that many people now have a new appreciation of fetal life and that when prospective parents who want to have a child view a sonogram, they typically have no doubt that what they see is their daughter or son.
In a footnote, Alito noted that some pro-life advocates pointed out that abortion has disproportionately killed black babies. It is no accident that the leading abortion provider (and peddler of baby parts) Planned Parenthood was founded by the racist eugenicist Margaret Sanger (although she herself opposed abortion).
Alito also pointed out the arbitrary reasons for rejecting the humanity of the unborn. Too many of the proposed criteria would rule out many people after birth as well:
Some have argued that a fetus should not be entitled to legal protection until it acquires the characteristics that they regard as defining what it means to be a “person.” Among the characteristics that have been offered as essential attributes of “personhood” are sentience, self-awareness, the ability to reason, or some combination thereof. By this logic, it would be an open question whether even born individuals, including young children or those afflicted with certain developmental or medical conditions, merit protection as “persons.”
Alito slammed the dissenting opinion for ignoring the real concerns of those who support abortion restrictions:
The most striking feature of the dissent is the absence of any serious discussion of the legitimacy of the States’ interest in protecting fetal life.
However, we are not surprised. Precisely because many people still oppose murder, most abortion-lovers strenuously try to avoid discussion on even the possibility that the unborn might be a human being.
Now Alito made it clear that this decision wasn’t taking any position on the nature of the unborn. In the Court’s opinion, the Constitution didn’t say anything about abortion either way. It didn’t require that abortion be forbidden, and didn’t require it to be permitted. Rather, Alito’s ruling was that this wasn’t the business of the Courts, but of the People and the States.
One of his predecessors, the late Justice Antonin Scalia, was in agreement with that stance. He was a Catholic, one of the founders of modern originalist jurisprudence, and a staunch foe of Roe and abortion.17 But he said:
My job is to interpret the Constitution accurately. And indeed, there are anti-abortion people who think that the constitution requires a state to prohibit abortion. They say that the Equal Protection Clause requires that you treat a helpless human being that’s still in the womb the way you treat other human beings. I think that’s wrong. I think when the Constitution says that persons are entitled to equal protection of the laws, I think it clearly means walking-around persons.18
But with the greatest respect, I think a case could be made from the laws before, during, and after the Constitution was written that the ‘persons’ included unborn. See below for all the anti-abortion laws in the USA and UK, written precisely because the unborn was considered a human being.
Back to the States
The Dobbs case did not ban abortion, unfortunately. Rather, it returned the issue to the States. This is still a vast improvement. Many have been working on abortion bills for years, both pro- and anti-, in case Roe were returned. About 16 states have ‘trigger laws’, which means some restrictions or even outright bans were set to become operative if and when Roe was overturned.19
Already, “Planned Parenthood of Tennessee and North Mississippi announced it is suspending providing abortion services in Tennessee.”20 So much for Planned Parenthood’s deceitful claim that abortion is only 3% of what they do (actually, most of its services were connected to abortions, and they aborted 320,000 babies per year, a third of all American abortions21).
However, other states have loosened protections for unborn babies even more than Roe and Casey. Some allow abortion even up to the time that the baby is entering the birth canal,22 or even post-birth abortions (usually called ‘infanticide’).
Going back to the States and People is certainly an improvement over imposition by a panel of nine judges. None other than the late Justice Ruth Bader Ginsburg, an ardent pro-abortionist, recognized that Roe was tactically unwise even from her own perspective by removing the decision from the people:
Roe … halted a political process that was moving in a reform direction and thereby, I believed, prolonged divisiveness and deferred stable settlement of the issue.
Roe: abuse of law
Alito pulled no punches in denouncing Roe as a dreadful decision when it was decided, and dreadful that it lasted almost 50 years:
Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.
Roe was also egregiously wrong and deeply damaging. For reasons already explained, Roe’s constitutional analysis was far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed. Roe was on a collision course with the Constitution from the day it was decided, Casey perpetuated its errors, and those errors do not concern some arcane corner of the law of little importance to the American people.
Abortion is NOT in the US Constitution
One major error of Roe was pretending to find a right to abortion in the US Constitution. Alito summarized the pretence and outright demonstrable errors of the Roe decision:
Even though the Constitution makes no mention of abortion, the Court held that it confers a broad right to obtain one. It did not claim that American law or the common law had ever recognized such a right, and its survey of history ranged from the constitutionally irrelevant (e.g., its discussion of abortion in antiquity) to the plainly incorrect (e.g., its assertion that abortion was probably never a crime under the common law). After cataloguing a wealth of other information having no bearing on the meaning of the Constitution, the opinion concluded with a numbered set of rules much like those that might be found in a statute enacted by a legislature.
Alito also invoked ‘admission against interest’ in support of his argument. That is, a pro-abortion constitutional scholar admitting that he liked the result, and “would vote for a statute very much like the one the Court end[ed] up drafting” if he were “a legislator.” But this is a major problem: laws are meant to be passed by the Legislative Branch (Congress), whom the people vote for. Judges are supposed to interpret law, not legislate from the bench.
This same scholar recognized, “Roe was ‘not constitutional law’ at all and gave ‘almost no sense of an obligation to try to be.’”
Yet for the last 50 years, many pro-abortionists have acted as if abortion were a constitutional right, and the Dobbs decision has undermined that right.
While abortion is not directly in the Constitution, the Roe decision pretended it was. They relied on an earlier case, Griswold v Connecticut (1965), which derived a ‘right to privacy’. They declared that Constitutional rights “have penumbras, formed by emanations.” But Alito pointed out the bait-and-switch about the meaning of ‘privacy’:
Citing a broad array of cases, the Court found support for a constitutional “right of personal privacy”, but it conflated two very different meanings of the term: the right to shield information from disclosure and the right to make and implement important personal decisions without governmental interference.
That is, the ‘right’ involved was not having the Government pry into your personal information. It did not mean that anything you did in private was none of the Government’s business. E.g. it is illegal to try to bribe a law-enforcement officer in private, or to molest one’s own children in the privacy of your home, and many more things.
The right to privacy was so weak that Casey abandoned the ‘privacy’ argument. But wishing to keep the right to kill babies, they invented another pseudo-constitutional excuse. Rather, Casey invoked:
the freedom to make “intimate and personal choices” that are “central to personal dignity and autonomy.” Casey elaborated: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
Alito would have none of that:
While individuals are certainly free to think and to say what they wish about “existence”, “meaning”, the “universe”, and “the mystery of human life”, they are not always free to act in accordance with those thoughts.
In particular, no matter what one thinks and says, there is no right to act to harm another person. And that of course is the whole issue at stake (see above).
Pre-Roe abortion laws
Since abortion is not directly or even indirectly mentioned in the Constitution, could it be implied by the laws of the time? To the contrary, Alito documented from the famous legal commentaries and the laws on the book that abortion was a crime, precisely because it killed a baby. For the Christian outside the USA, it’s also notable that the Church universally condemned abortion. E.g. the late 1st-century work, the Didachē ( Διδαχή = ‘teaching’, short for The Lord’s Teaching Through the Twelve Apostles to the Nations), says:
The second commandment of the teaching: You shall not murder. You shall not commit adultery. You shall not seduce boys. You shall not commit fornication. You shall not steal. You shall not practice magic. You shall not use potions. You shall not procure [an] abortion, nor destroy a newborn child.23
And in the late second century, Athenagoras, an Athenian philosopher who converted to Christianity, wrote to Emperor Marcus Aurelius defending Christians against accusations that they were murderers. He used an a fortiori (“how much more”) argument: we go even further than you do by prohibiting murder of infants, both born and unborn, so how much more we would oppose murder of adults:
And when we say that those women who use drugs to bring on abortion commit murder, and will have to give an account to God for the abortion, on what principle should we commit murder? For it does not belong to the same person to regard the very fetus in the womb as a created being, and therefore an object of God’s care, and when it has passed into life, to kill it; and not to expose an infant, because those who expose them are chargeable with child-murder, and on the other hand, when it has been reared to destroy it.24
But Alito confined his analysis to American laws, and the British laws that strongly influenced them. English laws condemned abortion from as far back as the 13th century, and right up to the 18th century before the USA became independent. After independence, in the 19th century, almost all states made abortion a crime at all stages in pregnancy. The Territories, which would later become new States, followed suit.
In fact, when Roe was imposed, 30 states still banned abortion for any reason except to save the life of the mother. Furthermore, some of the remaining states still criminalized or regulated abortions more strictly than Roe allowed. Alito summarized:
The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973. The Court in Roe could have said of abortion exactly what Glucksberg said of assisted suicide: “Attitudes toward [abortion] have changed since Bracton, but our laws have consistently condemned, and continue to prohibit, [that practice].”
Alito also addressed the issue of ‘quickening’. This term comes from the archaic meaning of ‘quick’ as ‘living’.25 In the context of pregnancy, it means the first felt movement of the baby in the womb, i.e. tangible proof of a living baby inside. This is usually around the 16th–18th week of pregnancy, not long after the Mississippi law cut-off. Many laws rigidly prohibited abortions after quickening.
But this needs to be understood in context. Quickening was clear proof of a baby in a time where there were no ultrasounds or chemical pregnancy tests. But they understood that there was a baby before quickening; it was just harder to prove. So even though some ancient laws did not call a pre-quickening abortion a ‘homicide’, it was still largely disapproved, and sometimes could still be a crime.
Alito cited English legal scholars who affirmed that a pre-quickening abortion could rise to murder if the mother was killed accidentally. E.g. the great legal commentator Sir William Blackstone (1723–1780), who influenced many American Founders and Presidents, argued that the abortionist showed “malice aforethought” with a potion “unlawfully to destroy her child within her.” Thus there was intent to kill one person, so the person is culpable if another one dies. It is like an armed robber who shoots intending to kill a cop, but unintentionally kills a bystander instead. He is still liable for murdering that bystander. As Blackstone explained in relation to pre-quickening abortion:
“[I]f one shoots at A and misses him, but kills B, this is murder; because of the previous felonious intent, which the law transfers from one to the other. The same is the case, where one lays poison for A; and B, against whom the prisoner had no malicious intent, takes it, and it kills him; this is likewise murder. So also, if one gives a woman with child a medicine to procure abortion, and it operates so violently as to kill the woman, this is murder in the person who gave it.”
Blackstone did not call for prosecution of other doctors whose patients died accidently. The key difference is that the abortionist was trying to kill a child—any child, not just a ‘quick’ child.
Anyway, even in the 19th century, quickening was abandoned as a cutoff point. Leading medical and legal scholars recognized that the child existed long before it made itself known by feelable movements. So both the UK and many states of the USA “followed the science”, and criminalized abortion even before quickening. Alito summarized his case:
Not only was there no support for such a constitutional right until shortly before Roe, but abortion had long been a crime in every single State. At common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages. American law followed the common law until a wave of statutory restrictions in the 1800s expanded criminal liability for abortions. By the time of the adoption of the Fourteenth Amendment, three-quarters of the States had made abortion a crime at any stage of pregnancy, and the remaining States would soon follow.
As mentioned above, given such laws, I would have gone even further than the Court. That is, the Constitution included the unborn as “persons” whose lives were protected, so would require laws against abortion.
But while we should strive for total abolition, the Dobbs ruling was still cause for celebration, a huge step in the right direction. We should also not let the perfect be the enemy of the good. For comparison, take a case of 100 children are drowning, but it’s possible to rescue only 50. We don’t refuse to rescue those 50 just because we can’t rescue all of them. Saving 50 is better than saving none.
Did the judges lie at confirmation hearings?
Some have attacked the judges for ‘lying’ about Roe at their confirmation hearings, especially Justices Alito, Kavanaugh, and Gorsuch. But legal scholar Jonathan Turley, not a conservative, rejects this attack as “utter nonsense”.26 They acknowledged that Roe at the time was a precedent, but did not promise never to overturn it. As Prof. Turley points out, some of the liberal nominees have done the same about conservative precedents.27
Precedents and stare decisis
A major section of Justice Alito’s ruling concerned the nature of legal precedents and the legal doctrine of stare decisis. This is Latin for “to let stand/remain what has been decided”. It is an important concept in general. For law to be just, people need to know in advance what is permitted and what is forbidden. They should also be able to make long-term plans without fear that the laws can change on whim.
But while stare decisis is important, it is not absolute. Justice Alito provided several SCOTUS precedents that were justly overruled. One is Plessy v. Ferguson (1896) and subsequent cases based on this, which allowed racist segregation in the Federal Government and in public schools. This evil ruling lasted even longer than Roe, until it was overruled by Brown v. Board of Education of Topeka (1954). Justice Thomas cited another very bad SCOTUS ruling, Dred Scott v Sandford (1857) that declared black people were:
beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.
Dred Scott v Sandford was overturned by the US Civil War and Constitutional amendments. Other appalling SCOTUS rulings include Buck v Bell (1927) that allowed forced sterilization of those deemed ‘unfit’; and Korematsu v. United States (1944) that decreed that Japanese ancestry was a crime worthy of forced internment.
Justice Alito presented five factors that mean that stare decisis should not apply to Roe:
the nature of their error, the quality of their reasoning, the “workability” of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance,
Some brief citations from Alito’s ruling for the first two reasons:
- The nature of the Court’s error. Like the infamous decision in Plessy v. Ferguson, Roe was also egregiously wrong and on a collision course with the Constitution from the day it was decided. Casey perpetuated its errors, calling both sides of the national controversy to resolve their debate, but in doing so, Casey necessarily declared a winning side.…
- The quality of the reasoning. Without any grounding in the constitutional text, history, or precedent, Roe imposed on the entire country a detailed set of rules for pregnancy divided into trimesters much like those that one might expect to find in a statute or regulation. Roe’s failure even to note the overwhelming consensus of state laws in effect in 1868 is striking, and what it said about the common law was simply wrong.…
Justice Kavanaugh’s concurrence agreed that stare decisis should not apply to Roe:
I agree with the Court today that Roe should be overruled. The Court in Roe erroneously assigned itself the authority to decide a critically important moral and policy issue that the Constitution does not grant this Court the authority to decide. As Justice Byron White succinctly explained, Roe was “an improvident and extravagant exercise of the power of judicial review” because “nothing in the language or history of the Constitution” supports a constitutional right to abortion.
Epilogue: where we go from here?
One very important WW2 engagement was the Second Battle of El Alamein in late 1942. Lieutenant-General Bernard Montgomery thoroughly defeated Generalfeldmarschall Erwin Rommel, the “Desert Fox”. This helped to end the Nazi threat in North Africa. The UK Prime Minister Winston Churchill declared, “This is not the end. It is not even the beginning of the end. But it is perhaps the end of the beginning.” That is, it was an important turning point, but the war was far from over.
I think the same applies to Dobbs to defeat the aggressor in the war against the unborn. So I will discuss a few issues remaining.
Ectopic pregnancies and miscarriages
Some pro-aborts have lied that women would now be in danger of dying from ectopic pregnancies. This is where the baby develops outside the womb (ectopic comes from Greek words meaning ‘out of place’). But all pro-life laws, and most pro-life organizations, have a genuine ‘life of the mother’ exception.
With ectopic pregnancies, especially tubal, if the baby were left in place, both mother and baby would die. Removing the baby is the only option. Sadly, under current technology, there is no way to keep the baby alive. But the intent is to remove the baby from its position of endangering the mother, while the intent of an abortion is a dead baby. Thus most authorities don’t consider removal of ectopic pregnancies as an abortion.
Neither does CMI, as explained in What about abortion to save the mother’s life? Some CMI-US staff wrote to a Christian health-sharing ministry (that helps with the cost of medical treatment) that they should cover removal of ectopic pregnancies.
Thus there is no danger of prosecution for a pregnant woman who seeks treatment for ectopic pregnancy. But the pro-abort agitprop claiming that such a woman could face charges might very well scare a woman from seeking treatment, which really could cost lives.
And despite some pro-abort histrionics, women who suffer the tragedy of miscarriage are in no danger of prosecution. It should be obvious: miscarriage is to abortion what natural death is to murder. There is no malicious intention to kill. Incidentally, the fact that many women grieve over miscarriage is evidence that a human life was lost.
Anyway, a good principle is hard cases make bad law. It is perverse to raise these hard hypothetical cases as if they justify allowing abortion for any reason at any stage in pregnancy.
Texas law on abortion, what is is and isn’t, and exceptions
As a specific example, some have claimed that Texas’ law has endangered couples. However, the law is very clear (emphasis added):
(1) “Abortion” means the act of using or prescribing an instrument, a drug, a medicine, or any other substance, device, or means with the intent to cause the death of an unborn child of a woman known to be pregnant. The term does not include birth control devices or oral contraceptives. An act is not an abortion if the act is done with the intent to:(A) save the life or preserve the health of an unborn child; (B) remove a dead, unborn child whose death was caused by spontaneous abortion; or(C) remove an ectopic pregnancy.28
Sec. 170A.002. PROHIBITED ABORTION; EXCEPTIONS. (a) A person may not knowingly perform, induce, or attempt an abortion.
(b) The prohibition under Subsection (a) does not apply if:
- the person performing, inducing, or attempting the abortion is a licensed physician;
- in the exercise of reasonable medical judgment, the pregnant female on whom the abortion is performed, induced, or attempted has a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced;and
- the person performs, induces, or attempts the abortion in a manner that, in the exercise of reasonable medical judgment, provides the best opportunity for the unborn child to survive unless,in the reasonable medical judgment, that manner would create:
- a greater risk of the pregnant female's death; or
- a serious risk of substantial impairment of a major bodily function of the pregnant female.
Pro-lifers are only pro-birth?
This is an old fallacy by pro-aborts,30 but sadly some Christians have joined in the sanctimony. Sometimes the argument goes like, “If you were really pro-life, you would personally pay for the upkeep of the child until she reaches 18. If you are not prepared to support the mother, then you have no right to oppose abortion.”
First, as usual, you can use the two-year-old test. Most would agree that we have every right to oppose a woman killing her two-year-old toddler, even if we were not prepared to pay for her upkeep.
Second, pro-lifers are at the forefront of care for mothers and babies. Pro-life pregnancy counselling centres, run mostly by conservative Christians, outnumber Planned Parenthood abortion mills over 3–1 (about 2,700 to 808). Yet the pregnancy counselling centres receive little to no government (i.e. taxpayer) funding, while Planned Parenthood receives $500 million per year—abortion, not pro-life activism, is a very lucrative business.
Pro-life pregnancy resource centres in one year serve 1.85 million people, and provide almost $267 million in free services, including 486,000 free ultrasounds, 1.3 million packs of diapers (nappies), and 2 million baby outfits.31 By contrast, “Only a small number of Planned Parenthood health centers offer the full range of prenatal care services” according to the organization itself.32
Planned Parenthood also treats pregnant employees poorly, and doesn’t offer paid parental leave to its employees.33 On this topic, after Dobbs, many major corporations have offered to fly pregnant employees to states where abortion is legal. This is much cheaper than paid maternity leave and adding a child to the health insurance program that many American companies offer workers as part of what they call a ‘compensation package’.
Third, there are far more couples wanting to adopt than there are babies available. However, pro-abortion bureaucrats have imposed time-consuming and very costly hurdles on adoption—tens of thousands of dollars.34
So to those Christians who joined in the sanctimony: there are plenty of ways you can practise what you preach. E.g. donate time or money to existing pregnancy counselling centres or adoptive parents.
Worst of all, some pro-abortion terrorist groups, such as Jane’s Revenge, have bombed and otherwise vandalized these pro-life pregnancy centres.35 Their slogan is, “If abortions aren’t safe, then neither are you.”