Why Roe v. Wade may soon be aborted

I’m not going to change your mind about abortion. No one will, or can. If you believe that life exists in all of its minute but majestic glory from the moment of conception, like me, you already embrace the cause to overturn Roe v. Wade. If you support a woman’s right to choose abortion, clinging to almost five decades of what many respected scholars-some liberal-consider legal fiction, you will reject my arguments. This is not an attempt to persuade.

This is not a “hearts and minds” sort of essay, seeking common ground on a battlefield bloodier than Gettysburg. This is a simple acknowledgement that, for the first time in 48 years, there is a strong possibility that the most cited, most manipulated, most controversial Supreme Court decision of the last century will be consigned to the margins of history.

This week, the Supreme Court decided to take up the most consequential abortion case since Planned Parenthood v. Casey was decided over thirty years ago. I call that case “Baby Roe,” because while it didn’t create the right to abortion in a feat of constitutional prestidigitation, it insulated that right from many of the attacks launched by the pro-life movement. Casey introduced the words “undue burden” to the lexicon, and any state law that was deemed to place an undue burden on a pregnant woman’s right to an abortion was struck down.

Enter, Mississippi. In a preview of what might happen if Roe is finally overturned and the issue is returned to the states where it belongs, this deeply-red bastion of conservatism passed a law that would ban virtually all abortions after 15 weeks. Two lower courts invalidated the legislation, and this week’s move by the supremes to grant certiorari is -if not a sign of changes to come -- at the very least a tantalizing development for abortion foes.

Up until now, the justices have been fairly squeamish when it came to this volatile issue. While they were willing to deal with some of the tangential issues like how far away protestors had to stay from abortion clinics and what kind of certification abortionists needed to perform the procedure, they tried to steer clear of actual bans. The last time they ruled on abortion was last year, when a majority that included Chief Justice Roberts struck down a Louisiana law that required abortion doctors to have admitting privileges at local hospitals. Abortion advocates did the usual “sky is falling” theatrics at the possibility that some clinics would have to close, but the ultimate decision didn’t address the legality of abortion itself. This time, it’s different.

In the first place, the Mississippi law doesn’t just limit who can perform an abortion. It limits who can have an abortion. If a woman is over 15 weeks pregnant and doesn’t fall into the very narrow exceptions of fetal abnormalities or medical emergencies, she can’t have an abortion. This is a direct hit on Roe’s holding that a woman has a fundamental right to an abortion, even in the last months.

When Roe was decided by an overwhelming majority of old white men (and a Black one) in robes, they needed to look as if they were doing something legitimate from a procedural perspective. They clearly understood that their decision to legalize abortion was going to be controversial, so they needed to give it some constitutional heft. They relied on Griswold v. Connecticut, a case that had been decided a few years before which held that the choice to use birth control was part of the right to privacy, and no state could interfere.

In other words, the court held that the choice “not to get pregnant” was protected by the Constitution. I’d even agree.

But what Griswold did not decide is whether “not being” pregnant or becoming “unpregnant” was an inherent part of the right to privacy. And that’s where Roe veered off of the highway of the acceptable and into the ditch of the undeniably tragic. Because Justice Harry Blackmum was able to convince six of his colleagues to become partisan politicians and abandon their duties as neutral arbiters of the law, a precedent was set that legalized the destruction of two full generations of Americans. Perhaps, finally, that will end. Roe did not just “create” abortion rights. It is, itself, an abortion of the law. Even the sainted RBG thought it was a poor decision. Let’s deal with the part where seven justices ripped up the Constitution to make some activists happy. Let’s tell Hamilton and Madison we’re sorry.

We can let the states deal with the fallout. It should have been that way from the very beginning, before millions of unborn Americans were guinea pigs for a creative old white man in a robe.