On Dec. 1, 2021, the United States Supreme Court heard oral argument in Dobbs, a case that presents the opportunity to reconsider the basis for legalizing abortion. Since Roe (1973), more than 62 million have been lost (and more than 2,000 continue to be lost every day). Our nation is at a crossroads. 

A year ago, Professor Michael Pakaluk published an article entitled Abortion is the Crux. He concluded that “legal abortion is the main evil that afflicts our country, and the others depend on it.” He’s right. Legal abortion undermines everything: science, medicine, law, politics, education, marriage, family, community, business, logic, civility, peace, public health, coherence and more. 

This is not the first time we have faced evil imposed by a wrongly decided Supreme Court decision. The Supreme Court rationalized slavery in Dred Scott (1857) and segregation in Plessy (1896). These evils persisted for decades before being abolished. 

Now we consider whether all are endowed with certain unalienable rights from the moment of conception. How will the Supreme Court respond? 

 

The 14th Amendment 

During oral argument in Dobbs, vital considerations reverberated through the chamber: liberty, autonomy, freedom, choice, reliance, precedent/stare decisis, safe haven, undue burden, substantive due process, opportunity, life. In addition to the briefs submitted by the parties, the justices received more than 140 amicus briefs. Of these, one stood out — a brief authored by Professors Robert George and John Finnis. They address the definitive question — whether the 14th Amendment applies to preborn human beings. 

In 1973, Sarah Weddington, the attorney advocating for abortion, was asked during oral argument what would follow if the Court recognized the protection of the 14th Amendment for the preborn child. She replied, “I would have a very difficult case.” The justice who posed the question forcefully followed up, “You certainly would.” This is the decisive issue as later noted in the majority opinion in Roe: 

If this suggestion of personhood is established, the [case for a constitutional right to abortion], of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the [Fourteenth] Amendment.

The Court sidestepped the issue contending that uncertainty existed about when life begins. Was that true then or now? 

Justice Harry Blackmun, the author of the majority opinion in Roe, served as counsel to the Mayo Clinic before being named to the Supreme Court. Justice Blackmun spent time at the Mayo Clinic writing the Roe opinion. A few years before Roe, the Mayo Clinic hired Dr. Hymie Gordon, an authority in the then new field of genetics. 

During Senate hearings a few years after Roe, Dr. Gordon testified as follows: 

By all criteria of modern molecular biology, life is present from the moment of conception. ... Science has a very simple conception of man; as soon as he has been conceived, a man is a man. 

Dr. Micheline M. Mathews-Roth, Harvard Medical School, noted: 

It is scientifically correct to say that an individual human life begins at conception. 

The “Father of Modern Genetics” Dr. Jerome Lejeune explained: 

To accept the fact that after fertilization has taken place a new human has come into being is no longer a matter of taste or opinion ... it is plain experimental evidence. Each individual has a very neat beginning, at conception. 

Dr. Eugene Diamond, Fellow of the Center for Bioethics & Human Dignity, put it this way: 

... either the justices were fed a backwoods biology or they were pretending ignorance about a scientific certainty. 

And yet, 50 years later this conundrum persists, as illustrated by Justice Sonya Sotomayor during the oral argument in Dobbs: 

The issue of when life begins has been hotly debated by philosophers since the beginning of time. It’s still debated in religions. So when you say this is the only right that takes away from the state the ability to protect a life, that’s a religious view, isn't it?

Science tells a definitive story. Life begins at conception. From zero to everything. From that moment, a new, never to be repeated human being exists. 

The truth remains as acknowledged by the Court in 1973 — the case for abortion “collapses” when the “personhood” of the preborn child is honored, as this should be per the 14th Amendment. 

 

Transformation 

When the leading medical proponent for legalizing abortion, Dr. Bernard Nathanson, encountered ultrasound, he literally came to see that he had two patients and he transformed. He dedicated the rest of his life to both patients. As cancer took its toll, he asked author Terry Beatley to “teach the strategy of how I deceived America.” Her book, What If We’ve Been Wrong? Keeping my promise to America’s Abortion King reveals the systematic deception that launched and perpetuates the legalization of abortion. 

We are a greater nation for changing course when we’ve been wrong. 

The Supreme Court case sanctioning segregation stood for 58 years. During the oral argument in Dobbs, Justice Alito asked the attorney advocating for maintaining Roe and Casey whether precedent would have prevented the Court from reversing Plessy (1896) in 1897.

It is never too late (nor too soon) to reverse an unjust decision.

 

A New Beginning 

The nation abolished slavery through the 13th Amendment and ensured equal protection through the 14th Amendment. Together with the 15th Amendment, these measures reconstructed our Constitution. 

The 14th Amendment, properly understood, ensures that never again will we fail to provide due process and equal protection to a class of human beings. 

Advocates for abortion argue the opposite. They contend that the 14th Amendment is broad enough to include abortion as a “family planning” measure. They characterize the pre-born child as “potential life.” But this is not true. She is a person with potential. 

On Dec. 8, 1854, the Church declared that through a singular act of grace, Mary the Mother of God, from the first moment of her existence, was “kept free from all stain of original sin.” This immaculate state enabled her to provide shelter for the pre-born Savior of the World for nine months. The Church honors this reality every year from March 25 to Dec. 25 (from the Annunciation to Christmas). 

As we prayerfully ponder the first moment of the Blessed Mother’s existence on the Feast of the Immaculate Conception, may we highly resolve to uphold our nation’s founding principles. 

May the Blessed Mother, as Patroness of the United States under her title the Immaculate Conception, guide us along our way. 

And may all suffering from abortion begin anew as the case for abortion collapses. 

Michael O. Kenney is the president of the Pro-Life Partners Foundation and a Senior Fellow of the The Cardinal Newman Society.