Roe v. Wade and America’s broken conscience

Yesterday, Jan. 22, 2023, marked exactly 50 years since the Supreme Court of the United States presented the nation with one of its darkest days, handing down the Roe v. Wade decision that invented a woman’s right to abortion out of thin air, imposed it on the entire nation, and plunged our society into a moral disaster from which we may never recover. 

  The Court announced the decision with a sense of historical moment. Justice Harry Blackmun, author of the majority opinion, acknowledged that abortion was “sensitive, emotional, and controversial.” He conceded that the Court’s decision would be controversial as well. Nevertheless, he also indicated privately that the nation would eventually get in line with the decision. Thankfully, Justice Blackmun was wrong about that. Tragically, the decision has left a legacy of death in the womb and moral disaster throughout the nation. Today, just months after the Supreme Court handed down its decision in Dobbs v. Jackson Women’s Health Organization, striking down Roe, the damage wrought by the 1973 decision comes ever more chillingly into focus.

The pro-life movement gained momentum in the years after Roe, and the decision itself was the catalyst for a political and moral awakening among those committed to protect life in the womb. The late Justice Ruth Bader Ginsburg, herself an ardent supporter of abortion, worried that the decision interrupted what she saw as political progress toward legalizing abortion through legislation. She might well have been right, and national legislation legalizing abortion, or comprehensive state efforts to the same end, might not have sparked the same energy in the pro-life movement. Roe did.

In terms of constitutional interpretation, Roe is simply wretched. We now know that seven justices were determined to legalize abortion and strike down state laws that stood in the way. Documents from the Court show that Chief Justice Warren Burger assigned Blackmun to write the majority opinion, even as the majority had no specific theory of how a supposed right to abortion could be found within the text of the Constitution. Blackmun faced the task of inventing such a theory, and he did exactly that.

When the decision was handed down, the Court was fairly certain that the nation would fall into line. As author Joshua Prager notes, “When courts recognize a new constitutional right, or liberalize in some way the social order, the public generally acclimates.” Not this time.

And yet, in retrospect, it now appears that both sides in the nation’s long abortion war misread the moral reality and misunderstood how Roe would impact the nation. Feminists had been claiming for years that women could not be equal to men if they did not have access to legal abortion. They went for broke with Roe and won. After the decision was handed down, they were certain that abortion would become an accepted part of the nation’s moral landscape. They did not see the backlash coming, and abortion activists and their liberal allies were certain that pro-lifers would fade away into political irrelevance. They also intended to push for federal funding for abortion and the eventual striking down of all restrictions on abortion, period. They thought they were winning and that a total feminist victory was inevitable.

Pro-lifers, as we know, were devastated by Roe and infuriated. They were also badly organized and lacked any well-understood political strategy. In truth, Roe gave them the strategy. Those who were determined to protect the unborn would have to elect presidents who would change the composition of the Supreme Court and the federal judiciary and install judges and justices who would not just invent rights and read them back into the Constitution’s text. Evangelical Christians were late to the battle, but got to the front lines by the end of the decade. Fast forward through many dangers, toils, and snares, and the pro-life movement arrived at a crucial victory this past June as a more conservative court ruled decisively that Roe was wrong, and wrongly decided. More importantly, the Court found that the Constitution included no fundamental right to abortion.

The reversal of Roe was indeed epic and necessary. It took five decades of pro-life activism to get to that victory. But this time it was pro-lifers who misread the moment. Only after the fall of Roe do we come to a necessarily deeper understanding of the decision’s malignant effect on the nation. Recent failures of state efforts to curtail abortion by citizen vote revealed the truth that, post-Roe, the pro-life movement faces not only the fact that one central battle over the Supreme Court has now turned into 50 different battles within each state, but that Americans appear more confused and compromised on the morality of abortion than ever before.

The law teaches, and a half-century of Roe evidently taught, millions of Americans that abortion, though the killing of life in the womb, is politically expedient if not morally right. Roe’s enduring legacy shows up in the nation’s warped moral conscience. We see that even more clearly now than in 1973. Roe has been reversed, but its pernicious and deadly legacy continues. We must enthusiastically celebrate the end of Roe, even as we understand that Americans are, if anything, more confused now than 50 years ago. Because of the infamous 1973 decision, the Supreme Court bears much responsibility for that fact.

Now, it is up to those who defend unborn life to remain in the battle with even greater intensity and commitment. The nation has blood on its hands, life is on the line, and we have much work to do.