Fifty years is enough

Today, amid the formality of oral arguments, for the first time in 30 years the Supreme Court will consider whether to overrule Roe v. Wade. The case could not be more significant. The Supreme Court finally has the opportunity to return abortion policy to the states, allowing them to protect unborn children when they need it most.

Fifty years under Roe is enough. Under the Supreme Court’s abortion jurisprudence, states such as Mississippi are unable to protect unborn children until viability—the developmental point (around 22 weeks) at which they can survive outside the womb. Roe results in the death of over 2,360 children in America every single day. And because Roe was declared by the Court to be a constitutional decision, there is absolutely nothing the political branches (or anyone else) can do about it: Late-term abortions will remain legal unless and until the core holding of Roe is overruled.

Take the Mississippi law at issue in Dobbs v. Jackson Women’s Health Organization. Mississippi’s Gestational Age Act is actually a very modest restriction on abortion. It comes into effect only at fifteen weeks—leaving a pregnant woman months to obtain an abortion. It contains exceptions for the life and health of the mother. It applies at a time when the most common abortion procedure is dilation and evacuation, a cruel procedure in which the unborn child is crushed and torn apart. It protects the life of an unborn child who, at fifteen weeks, can hear her mother’s heartbeat, move and stretch, open and close her fingers, smile, and hiccup. The child has fully taken on the human form. And emerging scientific evidence suggests that she can likely feel pain as early as twelve weeks—months before viability.

Despite its quite modest reach, however, the lower federal courts struck down Mississippi’s fifteen-week law finding that Roe and its progeny forbid states from restricting abortion prior to viability no matter how strong the state’s interest in protecting unborn children, women’s health, or the medical profession.

The radicalness of the abortion policy mandated by Roe is illuminated by global protections for the unborn. The fifteen-week law at issue in Dobbs is at least as permissive as the abortion laws of over 90 percent of other countries. Indeed, the United States is only one of seven countries that allow abortions up until viability. It is only one of four countries—including China and North Korea—that allow elective abortions throughout pregnancy. To put it simply, under Roe, the United States provides less protection for unborn life than nearly every other country in the world.

Roe also profoundly damages our democracy. It enthroned the Supreme Court as the arbiter of national abortion policy. And it removed from public debate and legislative action one of the most important issues of our day. As even Justice Ginsburg acknowledged, “heavy-handed judicial intervention [in Roe] was difficult to justify and appears to have provoked, not resolved, conflict.”

Roe paints a demeaning view of women and motherhood. According to the opinion in that case, motherhood was to be avoided at all costs as it would “force” upon women a “distressful life and future.” Nothing could be further from the biblical picture of motherhood.

Roe and later abortion cases are egregiously wrong. The right to an abortion appears nowhere in constitutional text or structure. Nor does history support a right to an abortion. In order for abortion to be a liberty interest protected by the Fourteenth Amendment, there would need to be a deeply rooted tradition of abortion in this country. There is not. In 1868, when the Fourteenth Amendment was enacted, 30 of 37 states restricted abortion. Further, Roe overturned nearly every state’s abortion law. Before Roe, the vast majority of state’s prohibited abortion, with some exceptions for rape, incest, and the life and health of the mother. After Roe, every state was required to permit abortion up until viability overnight.

It is hard to find a constitutional scholar who will argue that Roe v. Wade was rightly decided. That case made up the right to an abortion from the so-called emanations and penumbras of other rights. No other right recognized by the Court has such a tenuous constitutional basis and no other right allows for the purposeful destruction of a human life.

It is past time for Roe v. Wade to be reversed. The least among us deserve better. They deserve life.