Much of the nation’s focus last week has been on the Mississippi abortion case, Dobbs v. Jackson Women’s Health Organization, after the case was heard for oral arguments. The Mississippi law in question would effectively prohibit ending the lives of pre-born human beings after 15 weeks of pregnancy. This is earlier than the 23-24 week so-called “viability” threshold (“viability” is defined as the ability of the baby to live outside the womb) had been determined to be to this point.
It is also important to note that some babies have been born earlier than 24 weeks and have survived, so what we are really saying is that a child’s dependence on her mother in the womb—the child’s lack of ‘viability’—is a legal argument for killing her.
How might the U.S. Supreme Court rule in this Dobbs case and what effect would it have?
Firstly, if the Supreme Court overruled Roe v. Wade entirely it would return the question of protecting the lives of the defenseless unborn to the States and their state legislatures—state representatives, state senators – and the governor. Before Roe was decided in 1973—at a time when the unhinged Left said that the unborn were just a ‘blob of protoplasm’—political and legislative questions regarding the legal status of the unborn fell under the state’s “police powers” – even though then, as now, the unborn were and are biologically human and therefore should be considered to be legal persons as well.
This is why the argument of ‘precedent’ or ‘stare decisis’—that Roe should continue to stand simply because it has stood for 48 years—rings hollow: Roe had no legal, scientific or constitutional legitimacy when it was decided because abortion is not in the Constitution. (Please recall that “precedent” and “stare decisis,” which come up at every Supreme Court nominee’s Senate hearing, simply mean that a court is generally obligated to follow a prior decision when it decides a similar case in the future. That makes sense because treating the same legal issues similarly is what provides our nation with stability and lets us know what our law does and doesn’t allow. However, please remember that “precedent” and “stare decisis,” are merely legal doctrines which may be considered but in no way rise to the level of our U. S. Constitution, the foundational document of our nation.)
Secondly, the Court could decide not to overturn Roe and instead decide only to affirm the Mississippi law, prohibiting abortion after 15 weeks. This would have a powerful symbolic effect, further signaling the death knell of Roe and abortion-on-demand because it would be unmistakable that the violent scope of the Roe decision continues to be chipped away.
In its 1973 decision, the Supreme Court in Roe, with great judicial arrogance, took the issue of abortion away from all 50 states and “federalized” the issue, deciding that somehow our Constitution contains a “fundamental” right to abortion. How can this be, you might ask, since, again, the Constitution never mentions “abortion” or any concept or right roughly comparable to it.
In fact, in the Declaration of Independence—the prism through which the Constitution must be read—Thomas Jefferson writes that we are all, not born, but “created equal and are endowed by our Creator with certain inalienable rights, among them, life, liberty and the pursuit of happiness.” Medical science was primitive in Jefferson’s time, but after nine months of pregnancy and awareness of the life in her womb, no mother—then or now—would ever say that her child was “created” at birth. And yet, this lethal legal violence toward the defenseless pre-born—the Child of the Sonogram—was declared by Roe to be a “fundamental constitutional right.”
That is why the perversion at stake here involves much more than just a landmark decision that has no legal, scientific, or constitutional foundation. It also completely flouts and undermines the democratic principle of self-government set up by our Constitution. Further, it also damages the deeply-held Judeo-Christian belief in the sanctity and intrinsic value of life while also denying the scientific reality of life in the womb—America’s most vulnerable and voiceless citizens, unborn girls and boys.
Current scientific and medical knowledge about unborn life is literally light years ahead of the medieval dark ages of prenatal science when Roe was decided in 1973.
At conception, it is a medical fact that an individual with a unique and completely different genetic code from the mother’s is created; a new human being who is roughly 50 percent of the time, of a different gender than the mother, and often has a different blood type. The heart of this human being begins to beat at about 21 days after conception, and brain waves are emitted roughly 45 or 50 days after conception. At 10 weeks, the baby is about one and a half inches long and is perfectly formed, in need of only time, nourishment, protection—and love.
The question has never really been, when does life begin? But, rather, when does love begin?
Today, unborn children are operated on while still in the womb and long before birth for spina bifida and heart defects. How can a baby be a patient and not a person? So, on the critical issue of “when does life begin” the Supreme Court should “follow the science.’ (I’ve heard that somewhere …).
The Roe decision also puts a lie to the idea that, as boldly declared in the 5th and 14th Amendments, American citizens cannot be deprived of “life, liberty or property without due process of law.” These unborn Americans have had no due process, they have committed no crime … they’ve never even taken a breath. How can 9 unelected, life-tenured federal judges, in nothing more than an exercise in raw judicial power, determine the laws of—and the will of the people in—all 5o states.
Nevertheless, overturning Roe, or upholding the Mississippi 15-week ban, is a critically important first step toward vindication of the humanity of preborn Americans.
And we can only pray that, on a future beautiful and glorious day, as the persuasive power of medical science continues to make the humanity of the Child of the Sonogram more and more clear, and America’s love and kindness for the weakest and most defenseless members of the human family finally makes the barbarity of abortion unthinkable, another state law will reach the Supreme Court and will be upheld as including preborn Americans as citizens fully deserving of the protections of “life, liberty, and property’ in all 50 states.
May the Supreme Court find the courage to right a nearly half century injustice and take this critical First Step, and then one day, the Second Step to grant millions of preborn Americans the most fundamental constitutional right—the Right to Life.