In 1992, a Supreme Court made up of eight Republican appointees and a Democratic appointee who dissented in Roe v. Wade was primed to overturn Roe in Planned Parenthood v. Casey. But it didn’t. A majority made up entirely of Republican appointed justices voted to uphold SCOTUS-mandated legal abortion.
When new Supreme Court Justice Brett Kavanaugh and Chief Justice John Roberts joined the court’s liberals in voting against hearing a challenge from Louisiana and Kansas, both of which were appealing a lower court ruling dictating that they must give public money to the nation’s largest abortion provider, flashbacks were inevitable. The thought that Kavanaugh and Roberts could be the new Souter, O’Connor, and Kennedy is too much for most pro-life activists to bear. Roberts, in particular, appears primed to become the new Anthony Kennedy.
Instead of despairing, pro-life people need to redirect their frustration with the courts in a different direction. Because of our strict adherence to Roe v. Wade, we’re left settling for the fact that only 822,000 or so babies were murdered in 2015 and considering that a win. In a way, that is winning insofar as it’s the closest to winning the Supreme Court permits us to come. However, it’s winning a fraudulent game which we shouldn’t be treating as legitimate. We need to ignore Roe and abolish abortion.
Outside the pages of Teen Vogue, the constitutional incoherence of Roe isn’t seriously disputed. Resistance leader and Harvard Law professor Laurence Tribe wrote of the decision, “Behind its own verbal smokescreen, the substantive judgement on which it rests is nowhere to be found.” Edward Lazarus, a former clerk of Roe author Harry Blackmun who “loved Blackmun like a grandfather,” said “as a matter of constitutional interpretation, even most liberal jurisprudes — if you administer truth serum — will tell you [Roe] is basically indefensible.”
Roe’s most damning indictment comes from former dean of Stanford Law school John Hart Ely who proclaimed that “[Roe v. Wade] is not constitutional law and gives almost no sense of an obligation to try to be.” What Ely is saying is that in Roe, Blackmun hardly tried to make his decision appear legitimate. Roe amounts to nothing more than simple tyranny; a transparent power grab by a branch of government determined to become the engine of societal upheaval.
While leftist scholars freely
admit them, conservative judges and justices, with
a small few exceptions, are deathly afraid of speaking these simple
truths at confirmation hearings because of the unceasing demagoguery practiced
by Senate Judiciary Committee Democrats since Ted Kennedy’s shameful treatment
of Robert Bork in 1987. On this matter, former Joe Biden staffer Jeffery Rosen commented
aptly in The New Republic in 2003: “Thirty years after Roe, the
finest constitutional minds in the country still have not been able to produce
a constitutional justification for striking down restrictions on early-term
abortions that is substantially more convincing than Justice Harry Blackmun’s
famously artless opinion itself. As a result, the pro-choice majority asks
nominees to swear allegiance to the decision without being able to identify an
intelligible principle to support it.”
There isn’t an honest, intellectually serious defense of Roe or of the idea that the growing human in the embryonic and fetal stages of life represent only “potential” life as Blackmun argued, hence the demagogic bluster any time a judicial nominee dares point out that the emperor that is the United States Supreme Court has no clothes.
When it comes to abortion, there’s no constitution left to interpret. Only societal norms, unilaterally established by our nine-member super congress, to be dogmatically upheld against all reason and humanity. The right to murder one’s offspring is so enshrined in the Supreme Court’s alternative constitution that simple health regulations which mandate surgical facilities, including abortion facilities, must have hallways wide enough to fit a gurney though must be struck down because of the possibility that some abortion facilities which don’t meet that standard would close and a woman with child would have to travel further to exercise her “right” to kill.
David Corbin and Matt Parks have written that Roe v. Wade should have gotten the justices who ruled in the majority impeached. They’re right. Roe represents a complete abdication of the court’s Constitutional duty to interpret and apply law in which its authors assigned to themselves the power to write law while simultaneously acting as the final authority above whom there can be no appeal.
Of course, we should demand the court right its wrongs, but in the meantime, we shouldn’t act as if Roe and every farcical ruling decided on the precedence thereof are anything but null, void, and of no effect. That’s exactly what they are and it’s time to recognize that.
Oklahoma Senate Bill 13 is the standard-bearer
on this front. “It is the intent of the Legislature,” the bill states, “to
provide to unborn children the equal protection of the laws of this state; to
establish that a living human child, from the moment of fertilization upon the
fusion of a human spermatozoon with a human ovum, is entitled to the same
rights, powers, privileges, justice and protections as are secured or granted
by the laws of this state to any other human person; and to treat as void and
of no effect any and all federal statutes, regulations, executive orders and
court rulings, which would deprive an unborn child of the right to life.”
Following in the footsteps of Wisconsin’s 1854 nullification of the Fugitive Slave Act, OK SB13 is the appropriate response to a federal entity declaring a group of humans non-persons. Dare I say defiance and nullification is the only appropriate response to such a ruling. “I’m just following orders” wasn’t a legitimate excuse for mass murder-enablers of the past and it isn’t a legitimate excuse now.
Since the filing of OK SB13 in November of last year, similar bills have been introduced in Indiana and Texas and two Idaho representatives are currently drafting one. Notably, Texas governor Greg Abbot promised terminally ill teen Jeremiah Thomas that he and the state legislature would take action to ignore Roe and abolish abortion in the state. Every governor and state legislator should do the same.
Unfortunately, these bills face stiff opposition from Republican leaders and pro-life lobbyists. The Oklahoma and Indiana abolition bills have already been defeated by Republican committee chairs and National Right to Life’s state-level affiliates.
The reason for this opposition is the incremental strategy pro-life leaders have been committed to for a long time. They’re extremely invested in it, so much so that they actively oppose efforts to end abortion ahead of their timeline. For numerous reasons, the incremental strategy is not worth holding on to. In her 1824 pamphlet, Immediate, Not Gradual Abolition, Elizabeth Heyrick magnificently made the case against incrementally fighting colossal societal evils.
“The enemies of slavery have hitherto ruined [the abolitionist] cause by the senseless cry of gradual emancipation. It is marvellous that the wise and the good should have suffered themselves to have been imposed upon by this wily artifice of the slave holder, for with him must the project of gradual emancipation have first originated.
“The slave holder knew very well that his prey would be secure, so long as the abolitionists could be cajoled into a demand for gradual instead of immediate abolition. He knew very well, that the contemplation of a gradual emancipation, would beget a gradual indifference to emancipation itself. He knew very well, that even the wise and the good, may, by habit and familiarity, be brought to endure and tolerate almost any thing…
“He knew very well, that the faithful delineation of the horrors of West Indian slavery, would produce such a general insurrection of sympathetic and indignant feeling; such abhorrence of the oppressor, such compassion for the oppressed, as must soon have been fatal to the whole system… Our example might have spread from kingdom to kingdom, from continent to continent, and the slave trade, and slavery, might by this time, have been abolished all the world over: ‘A sacrifice of a sweet savour,’ might have ascended to the Great Parent of the Universe, ‘His kingdom might have come, and his will (thus far) have been done on earth, as it is in Heaven.’
“But this GRADUAL ABOLITION, has been the grand marplot of human virtue and happiness; the very masterpiece of satanic policy. By converting the cry for immediate, into gradual emancipation, the prince of slave holders, ‘transformed himself, with astonishing dexterity, into an angel of light,’ and thereby ‘deceived the very elect.’ He saw very clearly, that if public justice and humanity, especially, if Christian justice and humanity, could be brought to demand only a gradual extermination of the enormities of the slave system; if they could be brought to acquiesce, but for one year, or for one month, in the slavery of our African brother, in robbing him of all the rights of humanity, and degrading him to a level with the brutes; that then, they could imperceptibly be brought to acquiesce in all this for an unlimited duration….
“The father of lies…deceived, not the unwary only, the unsuspecting multitude, but the wise and the good, by the plausibility, the apparent force, the justice, and above all, by the humanity of the arguments propounded for gradual emancipation. He is the subtlest of all reasoners, the most ingenious of all sophists, the most eloquent of all declaimers. He, above all other advocates, ‘can make the worst appear the better argument;’ can, most effectually pervert the judgment and blind the understanding, whilst they seem to be most enlightened and rectified. Thus by a train of most exquisite reasoning, has he brought the abolitionists to the conclusion, that the interest of the poor, degraded and oppressed slave, as well as that of his master, will be best secured by his remaining in slavery.”
It’s hard to read Heyrick’s work without seeing a depiction of the pro-life movement. Millions of Christians have been cajoled into gradually ending abortion which causes a gradual indifference to ending abortion itself. Other than a few blips of outrage when abortion supporters defend infanticide or are caught on tape bartering over human body parts, the Church is largely silent.
A faithful, uncompromising delineation of the horrors of abortion by the hundreds of millions of Christians in this country would bring abortion to an end. But if those millions of Christians settle for Right to Life, and Right to Life-allied centrist Republicans passing ultrasound laws and waiting periods which reduce abortion by one or two or five percent and call that winning, there will never be an end to abortion because the church will have been lulled to sleep and the actual demand that abortion be outlawed because it is murder will never have been made.
Christians have been told by pro-life leaders that they must tolerate the legal dehumanization and murder of the preborn for another month, another year, another decade. . . and this has brought all but a tiny few of them to total complacency. We’ve got to demand it be wholly outlawed. That demand will rally the people of God. That demand will spread the Kingdom and bring an end to abortion the world over. Anything less undermines those objectives by tacitly affirming Roe, tacitly affirming abortion’s status as health care, compromising God’s commands, not communicating what actually makes abortion wrong, and lulling the church to sleep.
Returning to the issue of legalities, the objection to nullification is usually that it leads to legal uncertainty or a crisis of authority. Such anxiety is understandable but opponents of nullifying Roe need to acknowledge the consequences of not standing up to the Supreme Court.
Nearly 62 million image-bearers of God are dead as a direct result of Roe v. Wade. Two-to-three thousand are added to the total every business day. Our nation’s landfills are literally stained with the blood of the victims. Further, the practice of judges and justices substituting their own views for the text of the constitution is not something they are subtly dabbling in on occasion.
As lawyer Howard Slugh pointed out, it’s a formalized and widely practiced theory of judicial responsibility and courts are applying it to numerous issues beyond abortion. Detached from the text of the constitution and without any fear of impeachment by neutered legislatures, there’s nothing stopping a judge from ruling that anything he or she likes is a fundamental constitutional right as they did with abortion. This is the fruit of allowing the sham of judicial supremacy to go on unchallenged, and it is a tyranny that was foreseen by Thomas Jefferson. In an 1820 letter to William Jarvis, Jefferson explained that the Constitution does not assign the Supreme Court ultimate authority over all Constitutional questions, and that giving anyone that authority is to establish an oligarchy:
“You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps…. Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.”
Say, for example, the Supreme Court ruled that because babies threaten women’s autonomy, well-being, and equality that post-birth abortion was constitutionally protected and must be allowed in every state. (This practice has its supporters on the left, including most of the Democratic party.) In this case, the states would, of course, be morally and constitutionally obligated to tell that court to take their evil, unconstitutional opinion and kick rocks. In all likelihood, state-after-state would begin defying the Supreme Court and they’d do so with broad popular support. States and the individuals within them are no less obligated to reject the courts regarding pre-birth abortion. Murder is murder.
The immediatist position is that the Supreme Court’s permission is not necessary to abolish abortion, but the immediatist position is also more likely to bring about Roe’s reversal. A state challenging the court’s self-appointed authority to legalize murder signals to judges and justices that the people will no longer put up with judicial activism and legislation from the bench. The Supreme Court has no enforcement power meaning their authority is contingent upon the degree to which it respects the constitution and the respect it commands from the other branches, from the states, and from the people. If the Supreme Court senses that the people will no longer accept their ignoring the constitution, inventing rights, and legalizing murder, they’ll be more likely to correct those wrongs.
The courts aren’t supposed to react to popular sentiment but have been for a long time, the present court not excluded. With their recent actions, Kavanaugh and Roberts are likely making political calculations. Weighing most heavily is likely their fear of anger on the part of abortion supporters should legal abortion or Planned Parenthood be delivered even a partial blow. What should drive their decisions is the fact that until Roe falls in its entirety, the court remains a tyrant with no rightful authority on the matter. If the court knows that it is on the verge of being defied and exposed as a paper tiger, it will likely cave and overturn Roe.
Further, compromised laws that allowed for abortion in some cases and didn’t consistently treat abortion like murder are a huge part of what led to Roe in the first place. In footnote 54 of the Roe decision, Blackmun explained that the Texas abortion ban in question only provided for a short prison sentence for the abortionist and no penalty at all for the parents. Abortion was not treated as murder. Blackmun writes:
“There are other inconsistencies between Fourteenth Amendment status and the typical abortion statute. It has already been pointed out, n. 49, supra, that in Texas the woman is not a principal or an accomplice with respect to an abortion upon her. If the fetus is a person, why is the woman not a principal or an accomplice? Further, the penalty for criminal abortion specified by Art. 1195 is significantly less than the maximum penalty for murder prescribed by Art. 1257 of the Texas Penal Code. If the fetus is a person, may the penalties be different?”
Blackmun is essentially saying, “If pro-lifers actually think preborn human beings are equal to born human beings, why don’t treat the murder of a preborn human the same as a born human? And why do pro-lifers give full immunity to principal accomplices in the murder of preborn human beings? If pro-lifers don’t treat abortion like murder, why should the court?”
Not consistently treating abortion like murder undercuts the case against abortion both morally and legally. We must stop supporting laws which allow for murder as long as the baby is young enough or as long as the mother jumps through pro-life hoops. We have to treat abortion like what it is – murder – and abolish it. Otherwise, there’s no reason for the court to take our arguments seriously.
But regardless of the court’s opinion, we can’t wait for SCOTUS’ approval to do what’s right. Whether it be Roe v. Wade or Scott v. Sanford, the legal separation of humanity from personhood is the pinnacle of injustice. Both were evil and unconstitutional rulings, and when the courts disregard the constitution so egregiously and deliberately as to legalize murder, the states must disregard the courts. It’s time for state legislatures and governors to ignore the legal, moral, and spiritual atrocity that is Roe v. Wade and abolish the murder of preborn human beings.