It’s Time for ‘Roe’ to Go!

A NOTE FROM OUR PUBLISHER: The Supreme Court’s misguided 1973 decision is an epic constitutional error that cries out for correction.

Students from Liberty University sit and pray in front of the U.S. Supreme Court as the justices hear hear arguments in Dobbs v. Jackson Women's Health, a case about a Mississippi law that bans most abortions after 15 weeks,  on December 01, 2021 in Washington, DC.
Students from Liberty University sit and pray in front of the U.S. Supreme Court as the justices hear hear arguments in Dobbs v. Jackson Women's Health, a case about a Mississippi law that bans most abortions after 15 weeks, on December 01, 2021 in Washington, DC. (photo: Chip Somodevilla / AFP/Getty)

There is a grim irony to the claims being prominently advanced by the political left at this moment, alleging that the U.S. Supreme Court will be impermissibly meddling in politics should it decide to overturn its disastrous 1973 Roe v. Wade decision. 

Such claims are nothing new, of course. They have been standard practice for the abortion lobby whenever the legitimacy of Roe has been challenged — which has happened continuously ever since the nation’s highest court institutionalized the evil of abortion — for the straightforward reason that the decision is both morally indefensible and constitutionally untenable.

But this rhetoric in defense of legal abortion has escalated to hysterical levels in the wake of the Supreme Court’s Dec. 1 oral argument in the Dobbs v. Jackson case, in which the court is judging the constitutionality of a Mississippi law that makes most abortions illegal after 15 weeks of pregnancy. The tenor of the comments made by the majority of the court’s nine justices suggested strongly that, in their consideration of Dobbs, they are indeed inclining toward striking down Roe. 

Reading the temper of her colleagues during the Dec. 1 discussion, Justice Sonia Sotomayor, the court’s most stridently pro-abortion-rights jurist, overtly played the “politicization” card herself. If the conservative majority dares to topple Roe, she blustered during the oral argument, the court might not “survive the stench that this creates in the public perception that the Constitution and its reading are just political acts.”

The reason such claims are so ironic is because the court’s entrapment in the swamp of abortion politics for five painfully divisive decades is precisely due to the flawed Roe decision itself. 

The simple fact is that the U.S. Constitution is completely silent on the question of abortion, and the only reason that a majority of justices felt impelled in 1973 to invent a constitutional right to the life-destroying procedure is because they improperly tethered their legal conclusions to the political dynamics of their own day.

The current shrill accusations by the political left are a comprehensive misrepresentation of how and why the court became so politicized. Abortion supporters’ claims that today’s high court is engaging in political acts are dishonestly advanced to perpetuate the framework of legal abortion and deny the American people the opportunity of utilizing the proper democratic processes in order to diminish our nation’s horrific slaughter of innocent unborn lives.

In crafting their defective Roe decision in 1973, the liberal majority that controlled the court presumably calculated that the abortion debate would be silenced once and for all, both politically and legally. Yet by transparently taking a political side on the contentious abortion debate, and by doing so on the basis of utterly shoddy legal scholarship, they accomplished precisely the opposite. Thwarted by Roe from being able to legislate in harmony with the desires of the majority of their voters, state governments with strongly pro-life convictions have continually pressed against the boundaries of what the Supreme Court said was permissible, in terms of legislating abortion restrictions. 

Inevitably, these new pro-life laws result in court challenges that ultimately must be adjudicated by the Supreme Court — and equally inevitable is the new outburst of political contention generated once the court decides for or against a particular law.

Similarly, ever since Roe, abortion politics has governed the selection of new Supreme Court justices. Abortion activists, who are well aware of the legal decision’s constitutional fragility, even though they are seldom willing to admit the fact, demand the nomination of pro-abortion-rights candidates whenever a vacancy arises while a Democratic president is occupying the White House. Conversely, when a Republican president is in control, pro-life advocates press for Supreme Court nominees who are committed to “originalist” and “textual” interpretations of the Constitution, for the specific reason that such a judicial philosophy is utterly incompatible with Roe’s findings. 

However, if a judge who holds this conservative view of constitutional interpretation is nominated, a savage wave of political vitriol is unleashed by abortion activists and their allies in the Democratic Party and in the secular media. This dynamic was witnessed most notably in the vicious campaigns of character assassination undertaken during the confirmation processes of the court’s two most recent appointees, Justices Brett Kavanaugh and Amy Coney Barrett. 

Given these dynamics, it’s obvious to any fair-minded observer the only way that the Supreme Court could ever extricate itself from abortion politics is by overturning Roe, not by preserving it. But that isn’t the central reason it should do this. The central reason is that the decision is an epic constitutional error that cries out for correction.

If this does occur, courtesy of Dobbs, the greatest immediate benefit is that abortion law will return to the authority of individual states. This, in turn, will allow passage of new laws in pro-life states that will greatly restrict abortions or even ban them altogether, thereby saving the lives of an immense number of babies. Above all, this is why faithful U.S. Catholics are working and praying for the demise of Roe: to save unborn lives.

Another important result is that this would strengthen the legislative branch of the U.S. government, which has suffered in recent decades from encroachment on its democratic authority by both the judicial and executive branches. 

While the Roe legal abortion regime is hardly the only such encroachment, it is the most egregious and contentious one. So purging Roe from the public square would go a long way toward restoring a healthy balance between the legislative, executive and judicial branches — the balance that is critical in order for our system of government to function as our Founders envisioned.

A third important benefit would be to alleviate the deep chill that Roe has created in terms of religious liberty. As the Becket Fund for Religious Liberty pointed out in an amicus brief it submitted in the Dobbs case, Roe has empowered abortion activists to undertake legal and political “proxy wars” against religious believers who oppose abortion on moral grounds. According to Becket, these proxy wars can be seen in four main areas: abortion and contraceptive mandates, pharmaceutical regulations, pregnancy-center regulations, and restrictions against pro-life advocates who seek to counsel women on sidewalks outside of abortion facilities.

But it’s also crucial to remember that simply striking down Roe won’t mean the end of the evil of legal abortion. A number of state governments that support on-demand abortion have already passed laws that would mandate this, and these laws would come into force immediately upon Roe’s demise. Other states will likely opt to retain a framework similar to the one imposed by Roe, with abortion available without limits during the earlier stages of pregnancy but restricted during the final weeks before birth.

Such a situation will never be acceptable to those of us who know, by virtue of scientific fact as well as by our Christian faith, that human life begins at conception and possesses from that moment forward an infinite value that should never be sacrificed because of an abortion. We also know that the evil of abortion is fundamentally incompatible with an authentic understanding of the ideals of life and liberty that form the very basis of the American republic. 

Sadly, however, this knowledge is no longer shared by a large percentage of our fellow Americans, so our mission in a post-Roe nation will be to proclaim these truths in compelling ways that, over time, will make them inescapably clear to all. Only by a change of culture and of hearts will legal abortion eventually be eradicated completely from the nation’s landscape. Equally importantly, we need to commit ourselves to providing the tangible help needed by each and every woman who finds herself in a crisis pregnancy, thereby providing them the freedom and confidence to choose life for their unborn babies. 

It’s an immense challenge, but one that we as Catholics should welcome — especially right now, as we approach Christmas, the time when we celebrate Jesus’ own birth. 

God bless you!