Beyond reversing Roe

Recently, I dropped by our local crisis pregnancy center to sign a form for my daughter’s volunteer service. When a young woman who graduated from my university came out to greet me, she asked with expectation if I really thought the Supreme Court would reverse Roe v. Wade. When I told her that I thought there was a real possibility it would, her face showed such joy and satisfaction at the thought. I could feel the beauty of it. It seemed we both felt we stood on the precipice of a miracle. Roe, having enshrined abortion as a constitutional right beyond the reach of voters across the country and licensing tens of millions of terminated pregnancies, could really be coming to an end after half a century. We will see. It seems more possible than at any point in my lifetime.

The first piece I ever published was a law school article on why Roe should be reversed. My argument (made around the year 2000) was that Roe had been badly reasoned, but also that our knowledge of the life of unborn children had radically expanded. I pointed to the development of ultrasound technology and the explosion of the medical field known as fetology. It would no longer do to speculate about “quickening” of the fetus or to engage in mystical wondering about “ensoulment.” Instead, we now have a window into the womb and can see the life of the child inside his or her mother.

Under modern abortion jurisprudence, the status of the unborn child was remarkably similar to that of a slave. By and large, the fate of both beings, born and unborn, depended upon the arbitrary will of their “owners.” The mother, by the logic of pro-choice arguments, may either treat her unborn child as a real person or may terminate that same child’s life. By virtue of modern politics, the issue of abortion revives the monstrous power of life and death private persons hold over others. The result is that some families frame images of ultrasounds of their children or post them on social media. Others walk away from a little pile of organic material which will be discarded as medical waste. The cognitive dissonance required to easily live in a society with indifference to the coexistence of these two practices is mind-boggling.

I hope and pray for the end of Roe v. Wade. However, it is important to realize that ending Roe would simply give the states the power to settle the issue democratically rather than leaving it in the hands of the courts. But there is yet another issue to be resolved, and that is the personhood of the unborn child.

Although advocates of abortion embrace slogans such as “my body, my choice,” the reality is that the unborn child is not the mother’s body. The unborn child has his or her own body, his or her own DNA, and his or her own movement. While the child is dependent upon his or her mother’s body to continue to live and develop, the same is clearly true of newborns and toddlers. It is time to face the fact that the unborn child is a separate being and a person. I would argue the unborn child should be seen as a constitutional person and therefore protected by the 14th Amendment of the U.S. Constitution, which guarantees that no state shall “deprive any person of life, liberty and property without due process of law.”

This argument was powerfully made in an amicus brief authored by legal giants John Finnis and Robert P. George.

An advocate of the abortion license might say, “An unborn child cannot own property. This is ridiculous.” But the reply is obvious. There are many things children cannot do by law, but they do not relinquish their right to life. It is a virtual given in law that children do not possess the full panoply of constitutional rights (infants cannot vote, for example), but that has never meant they lack the most fundamental right, which is to live and breathe.

So, let us pray that Roe is reversed and that the United States can stop being one of the most extreme and liberal licensers of abortion in the civilized world. And right away, let us work to persuade our fellow citizens of the personhood of every unborn child—a personhood which must be respected and protected constitutionally.