This piece originally appeared at Public Discourse: The Journal of the Witherspoon Institute Thursday, 23 January 2020, under the title "Why Roe Must Go"" and the byline Rita Joseph
All ideological fads eventually fade and collapse into disrepute, because they have no foundation in truth. "Pro-choice" ideology had its rise, which was based on the crude, reductionist falsehood that a human being in the womb is an anonymous, generic "bunch of cells". Now, its central lie has been unmasked, and Roe is ripe for reversal.
Forty-seven years after Roe v. Wade [410 U.S. 113 (more) 93 S. Ct. 705, 35 L. Ed. 2d 147, 1973], several hundred thousand Americans still March for Life every year in Washington, D.C. and other cities, protesting this infamous decision.
Because truth matters. It cannot be violated indefinitely.
Roe v. Wade can never be settled law, because it is a travesty of law. The Supreme Court had no more authority to deny the humanity of the unborn in Roe v. Wade than it did to deny the human rights of persons being treated as property in Dred Scott v. Sandford [60 U.S. 393 (more) 19 How. 393, 15 L. Ed. 691, 1856 WL 8721, 1857]. No authority can justly deny to anyone the equal protection of law guaranteed by the Constitution. No authority can legitimately revoke the unalienable rights of any innocent human being.
This is the reason why millions of Americans, of all walks of life, formed pro-life organizations to work to reverse Roe v. Wade and to provide practical help for distressed pregnant mothers. Real, everyday help for these mothers and their children — both before and after birth — continues to expand. Politically, this movement continues to make incremental progress at the state level and in Congress. Even the federal judiciary is beginning to shed its pro-abortion ideological attachments. New justices are being appointed who do not owe allegiance to the rapidly aging partisans of a pro-abortion ideology that denies the truth about the victims of abortion.
Roe v Wade can be overturned. Soon, a majority of justices on the Supreme Court may finally acknowledge, honor, and defend the words of the Constitution "according to their clear, plain, and natural signification" (as Justice Curtis put it in his Dred Scott dissent), rejecting the baseless ideology that produced Roe, Doe, and Casey.
The Fabrication of a Right to Abortion
When future historians look back at the opinions of the Supreme Court justices who professed to find "abortion rights" in the Constitution, they will be incredulous. Somehow, the majority in Roe found in the Constitution rights for women that could be exercised only by sacrificing equal rights for our posterity. They conjured up a right to abort "the unwanted child".
Rights are mentioned fifty-eight times in Roe v. Wade. Duty is mentioned only once. A single, tentative phrase concedes "the State's interest — some phrase it in terms of duty — in protecting prenatal life". Yet, in its opening statement, the Constitution recognized a fundamental personal and collective duty toward our children and our children's children. Our constitutional duties require us to secure the same blessings of liberty for them as we secure for ourselves.
In the Constitution, the blessings of liberty were guaranteed to our Posterity. In the Declaration of Independence, all people are said to be created equaland endowed by their creator with unalienable rights. From the early days of the Republic, it was understood that rights such as the right to life are not "found" or "granted" by courts. "These rights have been justly considered, and frequently declared, by the people of this country, to be natural, inherent, and unalienable."
In the frantic search for abortion rights in the Constitution, our very real and fundamental duties to protect our Posterity — duties in plain view in the Constitution — were discarded. Children targeted for abortion came to be viewed as expendable.
But it need not remain so.
The Lies of Abortion
By nature, all ideological fads eventually fade and collapse into disrepute, because they have no foundation in truth. "Pro-choice" ideology had its rise, which was based on the crude, reductionist falsehood that a human being in the womb is an anonymous, generic "bunch of cells". Now, its central lie has been unmasked.
The first half of that lie is that the child's existence as a human being can be affirmed only at the moment of birth. It is ironic that this falsehood was embraced at a time in history when we have more detailed, empirically verifiable knowledge of the child's life in her [sic] mother's womb than ever before. In this age of advanced fetal medicine and fetal surgery, there can be no reasonable doubt regarding the humanity of any little daughter or son in her or his mother's womb.
Let us also be clear on the second half of the lie — that the Constitution protects a right to abortion. There are no abortion rights to be found in the Constitution. Such pseudo-rights are contrary to the stated purposes of the Constitution; contrary to We the People's responsible and unselfish commitment to the general Welfare — the common good; and contrary to securing the blessings of liberty as promised not just to ourselves but also to our Posterity.
These truths come from the laws of Nature and of Nature's God, and they cannot be erased by any ephemeral Supreme Court decision. When they are acknowledged, the case for "lawful" killing of children in their mothers' wombs collapses.
Roe v.Wade Can Be Overturned
Constitutionally, Roe v. Wade has never measured up to the tests for irreversible authenticity listed by Lincoln in his 1857 Springfield speech. Roe has never achieved "unanimous concurrence of the judges". Steeped in pro-abortion ideology, it could never be described as "without any apparent partisan bias", Roe was recklessly innovative; it was certainly not "in accordance with legal public expectation, and with the steady practice of the departments throughout our history". Finally, it cannot be said that Roe "had been in no part based on assumed historical facts which are not really true". To support his conclusion, Justice Blackmun had to concoct a revisionist version of the historical truth about the age-old common-law prohibition of abortion.
In all these respects, Roe v. Wade is ripe for reversal.
Moreover, the destructive social effects of Roe have now been revealed in the scale of the killings (totaling over 61 million), which have become routinized as an innocuous "choice". The Roe decision, in releasing such an unchecked injustice, has become indefensible. Making matters worse, Roe's privacy "rights" have facilitated further unforeseen injustices and serious, unintended consequences. Consider just a few examples: coerced abortion for women and girls in abusive relationships; the disproportionate targeting of black American children for abortion; eugenic abortions of children with disabilities such as Down Syndrome; and sex-selective abortion of girls. On May 28th, 2019, Justice Clarence Thomas challenged the Supreme Court with the ominous truth that abortion is proving to be a disturbingly effective tool for implementing the discriminatory preferences that undergird eugenics.
With renewed recognition today of the personhood of unborn children, their constitutional right to life may once again be guaranteed by the Fourteenth Amendment. Once freed from the discriminatory, ideologically driven depersonalization unleashed in Roe v. Wade, the protections of the Fourteenth Amendment can be restored to these children.
It's time for all fathers to step up to their duties. It's time for all good people to reach out to pregnant mothers in distress with timely help and ongoing support for both the mothers and their children.
It's time to restore legal recognition that the relationship between a mother and the child in her womb is one of belonging — never ownership. It is a relationship between persons, not between a mother as an owner and her child as her disposable, inhuman chattel.
As Justice Blackmun asserted quite correctly in Roe v. Wade, "The Constitution does not define 'person' in so many words". But the Constitution does forbid the mistreating of our Posterity as our property. The Thirteenth Amendment does require Congress to enforce by appropriate legislation the abolition of all forms of ownership of human beings.
For a reasonable person, there is nothing in the Constitution that could credibly support a blanket right to deliberately kill these smallest daughters and sons being nurtured in their mothers' wombs. Such a fiction directly sabotages the immutable, natural-law principles upon which the constitutional architecture of the United States was founded.
The Supreme Court erred. It's time to put it right.
Rita Joseph is a wife and mother over forty years, a writer, a part-time lecturer, and a human rights advocate specializing in the philosophy and language of human rights law. While serving at the UN in New York, she became interested in researching the founding instruments of the United States — the Declaration of Independence and the Constitution — with special regard to the Founders' understanding of what they called the "natural rights and duties of parents" relating to "the infant in the mother's womb". She authored Human Rights and the Unborn Child (Leiden & Boston, Martinus Nijhoff, 2009).