Yesterday was D-Day against abortion in America

“Roe versus Wade and Planned Parenthood versus Casey haunt our country.” Those were the opening words of the oral argument presented by Mississippi’s solicitor general, Scott G. Stewart, as he stood before the Supreme Court of the United States yesterday. Like the lancing of a horrible wound, the truth of those words set loose a torrent of sustained constitutional argument. Roe and Casey cannot be fixed. They cannot be sustained. They must be reversed.

It has been almost 50 years since the Supreme Court handed down the Roe v. Wade decision in 1973. Arrogating power to itself, the Court simply invented a woman’s ‘right’ to abortion, driven by the feminist demands that, in order to be equal, women must be able to be as unpregnant as a man. The demand for abortion had reached a fever pitch within the nation’s progressivist class but not in the rest of the country. There was no way that abortion was going to be legalized nationally through the legislative process. So, in a familiar pattern, social liberals went to the courts to gain what they could never get through legislation.

Accordingly, a majority of justices just invented a right to abortion and declared it to be the law of the land, binding on all states. Almost 20 years later, when the logic of Roe was impossible even for liberals to sustain, another Court majority changed the argument but sustained the “right’ to abortion in the Casey decision. Millions of unborn babies have died in the wake of those two decisions, and in the intervening years the moral culture of the nation has been transformed.

But abortion haunts the nation, and several states have pushed back, passing fetal heartbeat bills and other laws restricting abortion access. Mississippi, like the other states that have restricted abortion, hoped that the Supreme Court would finally take a case that would represent an unavoidable challenge to both Roe and Casey. With new conservative justices on the Court, there is hope that arguments about the unconstitutional nature of these two precedents would be compelling in a new case. That case finally arrived as Dobbs v. Jackson Women’s Health Organization, and yesterday was D-Day.

The Mississippi solicitor general was eloquent in his opening statement. He addressed both Roe and Casey head-on, declaring that the decisions “haunt our country.” He continued: “They have no basis in the Constitution. They have no home in our history or traditions. They’ve damaged the democratic process. They’ve poisoned the law. They’ve choked off compromise. For 50 years, they’ve kept this Court at the center of a political battle that it can never resolve. And, 50 years on, they stand alone. Nowhere else does this Court recognize a right to end a human life.”

Finally, the truth was spoken to the Supreme Court. General Stewart offered no evasions, and he pressed for nothing less than a reversal of both decisions. Liberal justices pushed back in defense of stare decisis, the Court’s tradition of standing on precedents, but Stewart pressed the urgent argument that precedents so egregiously wrong should never stand, citing other decisions of great moral significance that required the Court to break precedent.

The vacuous nature of the pro-abortion right arguments became quickly apparent in the defenses of Roe and Casey offered by an activist lawyer for an abortion rights group, Julie Rikelman, and the Solicitor General of the United States, Elizabeth B. Prelogar, representing the Biden Administration. Their arguments basically came down to two points. First, that Roe and Casey must stand as precedents or the Court would humiliate itself. Second, that a roll-back of abortion rights would put the Court on the wrong side of history.

Rikelman went so far as to claim that “eliminating or reducing the right to abortion will propel women backwards.” That’s what supporters of abortion really believe. What the nation witnessed on both sides of the oral arguments yesterday was the truth laid bare. One side thinks that abortion is necessary as a means of liberating women and the other side sees abortion as the murder of unborn humans. Both sides now know—and the justices of the Supreme Court must now recognize—that there is no middle ground.

A reversal of Roe and Casey would not mean that abortion would be illegal in every state. The battle for the defense of life would not be over. Not even close. But it would be a great victory, and the door would be opened for the defenders of life to push for a total protection of unborn life in every state. This win—should it come—will not be enough, but it will be huge.

Sometimes, the course of history is changed when just a few words of truth are finally spoken. We must pray that a majority of Supreme Court justices heard those words, and will draw courage from them.