On 21 January in Washington DC, many thousands of Americans joined the annual March for Life to protest at the 49th anniversary of the 22 January, 1973 Roe v Wade decision legalising abortion. This year there is great hope that the end of Roe is near, because of a case currently before the Supreme Court, Dobbs v Jackson Women’s Health. On 17 May, 2021, the Supreme Court agreed to hear arguments on a challenged Mississippi law, the Gestational Age Act, that would ban most abortions after 15 weeks. Oral arguments were heard on 1 December, and the decision is expected to be handed down by the end of June. Though expectations on the pro-life side were initially guarded – it is unlikely that the Dobbs decision would end Roe in one fell swoop – reactions to the oral arguments were extremely encouraging. Said Carolyn McDonnell from Americans United for Life: “Dobbs presented the most comprehensive oral argument the Supreme Court has heard on abortion. Dobbs v Jackson is primed to overrule Roe v Wade and nearly 50 years of a federal constitutional travesty that manufactured a woman’s right to abort her unborn child.”
On the other side, the headlines were of impending doom, such as, “The End of Roe is Coming and It’s Coming Soon” (New York Times); and “We are Witnessing the End of Roe v Wade” (Nation).
Pro-abortion advocates are right to be fearful. Because of the three Supreme Court appointments under former President Donald Trump – Justices Neil M Gorsuch, Brett M Kavanaugh, and Amy Coney Barrett – there is now a conservative majority on the Supreme Court. Also, for the first time since Roe, the court will consider the question of the rights of the unborn child – as opposed to a woman’s constitutional “right” to abortion, and whether or not abortion restrictions impose an “undue burden” on her ability to get one. Supporters of Mississippi’s law hold that a state may prohibit abortions before 15 weeks because there is nowhere in the United States Constitution a right to an abortion. The Roe v Wade decision discovered a “right” to abortion in the right to privacy; it also set up a trimester and “viability” standard that, critics hold, has little to do with scientific reality, especially as the point of viability gets pushed earlier and earlier with advanced medicine.
The Dobbs case is significant as well because, as attorney Clarke Forsythe, senior counsel for Americans United for Life and author of The Abuse of Discretion: The Inside Story of Roe v Wade, has argued in the Wall Street Journal, “a large majority of Americans would likely support a decision upholding the law”. Poll after poll show that most Americans think abortion should generally be illegal after the first trimester. Yet “there is a notion – repeated through the media and implied sometimes even by the Supreme Court, that Americans are ‘too polarised’ to decide the abortion issue through the democratic process and need the Court to decide it for them. The Mississippi case and polling on gestational limits obviously demonstrated that there is copious middle ground.”
Appeals to middle ground and balancing rights get lost, however, in the media frenzy: such was especially the case in September, when, seemingly all of a sudden, most abortions became illegal in Texas. On 1 September, the Texas Heartbeat Act went into effect, prohibiting abortions after the detection of a heartbeat. The Act was signed by Governor Greg Abbott in May, but as with all such state attempts, abortion providers challenged this act in court, asking for an emergency stay. To their dismay, lower courts rejected their pleas and a last ditch plea to the Supreme Court went unanswered. The night of the day the law went into effect, the Court declined to shut it down. The Texas Act has a unique twist, as attorney Ed Mechmann of the Archdiocese of New York explains, “it prohibits state and local governments and their employees from enforcing it. It is usually up to government agencies, like local district attorneys, health departments, or medical boards, to have the authority to enforce abortion laws. Instead, SB 8 empowers any person to file a private lawsuit against anyone who violates the law or “intends” to do so. This means that virtually anyone – even you or me – can act as a “private attorney general”. It was initially the nature of the law that contributed to the Supreme Court’s decision to take a pass. However, with renewed pleas, the Court did hear arguments and in December, the Court handed down a mixed ruling: the heartbeat law could stay, but abortion providers could sue in lower courts. At the time of writing, the Texas law is in effect.
Several other states are considering similar legislation – Alabama, Missouri, Florida and Ohio. But no matter what happens with Dobbs this June, there has already been much preparing for a post-Roe nation on the state level. Several anti-abortion states have “trigger laws” in effect, which means if Roe is overturned, abortion will immediately become illegal in their state. On the other side, several liberal states have passed laws to codify Roe v Wade. In 2019, for example, on the 46th anniversary of Roe, the now-disgraced former governor of New York Andrew Cuomo signed into law his Reproductive Rights Act, which not only allowed abortion up to the point of birth but also allowed for “letting” infants born alive die if they were unwanted. Other liberal states have followed suit to “codify Roe”: Delaware, Hawaii, Illinois, Maine, Massachusetts, New Mexico, Rhode Island and Vermont and just last week, New Jersey. Thus if Roe is overturned, America will become patchwork of Red and Blue, pro-life and pro-abortion states. Some states, like Texas, have “sanctuary cities” where no abortions may be performed. Others, like New York, will declare themselves “safe spaces” for abortion seekers, or centres of “abortion tourism”.
This year, the March for Life’s theme is “Equality Begins in the Womb”. It will return “in person” after 2021’s March was held “virtually”, except for a small group of pro-life leaders sombrely walking up Constitution Avenue, in the midst of a pandemic and in a city still reeling from the violence of 6 January. A week earlier, pro-abortion President Joe Biden was inaugurated. The mood was dark. This year, in contrast, emotions and energy are expected to be high and hopeful. The tens of thousands of predominantly young people expected will have varying political and religious views, but they will be united in the one cause, the protection of the unborn.
Since the Roe decision, over 62 million unborn human beings have lost their lives to abortion. But Americans have never let Roe become settled law. Addressing the crowds outside the Supreme Court on 1 December, Jeanne Mancini, President of the March for Life Education and Defense Fund, had this to say: “Much to the dismay of abortion activists, pro-life Americans have not become desensitised to abortion – in fact, just the opposite has occurred. The march grows every year and I can’t think of a more tangible or hopeful sign that Roe and Casey are not settled law. We are all united here today by our common understanding that every life from the moment of conception is precious and deserves legal protection.”
Maria McFadden Maffucci is the editor-in-chief of the Human Life Review
This article first appeared in the February 2022 issue of the Catholic Herald. Subscribe today.
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