Roe’s Feeble Foundation Threatened by the Tide of Truth

By Bonnie Finnerty, Education Director

With the President, mainstream media, and Hollywood elites all in their corner, it would seem that the abortion lobby is living their misguided dream.

But recent news that the Supreme Court will consider the constitutionality of Mississippi’s 15-week abortion ban has sent them into a tailspin. They’re panicked that not only will the ban be upheld by a more conservative Court, but that Roe itself may be reversed. If there is strong legal precedent and overwhelming public support for abortion, as activists often claim, what are they afraid of?

The truth. Many in the abortion industry know what many pro-lifers know: Roe v. Wade was a decision built on proverbial sand, a feeble foundation that has been steadily eroded by science, experience, and reason over the last 50 years.  

Legal scholars on both sides of the issue acknowledge the shaky ground on which Justice Harry Blackmun’s majority opinion was based. His own pro-abortion clerk, Edward Lazarus, admitted years later, “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible…And in the years since Roe’s announcement, no one has produced a convincing defense of Roe on its own terms.”

While abortion supporters often refer to the Constitutional right to abortion, the truth is there is no such thing, and there never was. Simply stated, there is no explicit right to abortion in the U.S. Constitution. So on what basis did the Court legalize abortion in 1973?

Roe said that a woman’s “right” to abortion was implicit in the right to privacy protected by the 14th Amendment. Yet, the amendment itself makes no mention of right to privacy.

“Nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The Roe Court referred to a right to privacy that was invented in a 1965 case about contraception, Griswold vs. Connecticut. In that majority opinion, Justice William O. Douglas wrote of penumbras (shadows) formed by emanations (rays) of the Bill of Rights, and surmised that from these shadows and rays arose a “zone of privacy,” later referred by the court as the “right of privacy.”

In essence, Justice Douglas proposed that the Bill of Rights emanates other rights, and in the shadows of those other rights are additional rights, none of which are specifically declared in the Constitution.  It was on this precarious, ever-shifting bed of sand (and shadows) that the right to abortion as part of a right to privacy was founded. A fabricated, weak argument.

What is undeniably explicit in the 14th amendment are guaranteed fundamental rights: no State shall make a law depriving any person of life, liberty, or property, without due process of law, nor deny equal protection of law. The 14th amendment, first and foremost, upholds the right to life.  And yet this amendment is used to imply a right to privacy that is prioritized over an explicit right to life.

But what about the word person, another frequent protest of abortion supporters? Are fetuses persons?  Even Justice Blackmun himself conceded in his opinion that the right to abortion would not exist if the humanity of the fetus could be proved.  “If this suggestion of personhood is established, [Roe’s] case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the [14th] Amendment,” he wrote.

What would a 2021 Blackmun say about this? Hidden in the womb, invisible to the human eye, the fetus was somewhat easier to de-humanize in 1973. But with the revelations of ultrasound, the evolving sciences of embryology and genetics, and the advancements of in-utero fetal surgery, it’s disingenuous to do so today.  Fetuses are as human as infants, toddlers, and senior citizens. Clearly, both science and technology have shown us the irrefutable proof that Blackmun sought. Those unwilling to admit to this obvious truth deliberately turn a blind eye to the evidence and begin playing language games in an effort to justify abortion.

The decision to legalize abortion was rooted in not just poor legal interpretation, but also deception. Roe was based on the lie that Jane Roe (Norma McCorvey) was raped.  Roe was supported by then-abortionist Dr. Bernard Nathanson’s grossly inflated, yet unquestioned numbers that thousands of women died in back alley abortions each year.  Roe’s majority opinion cited Larry Lader’s non-scientific book Abortion seven times, essentially using a piece of propaganda to justify a legal decision.

Roe is not immune to being overturned. As Justice Amy Coney Barret explained in her nomination hearings, Roe is not a super-precedent like the de-segregation case Brown vs. the Board of Education because it still faces many legal challenges in courts around the country. This vulnerability is what has the abortion lobby so worried. A tide of truth is creeping ever closer to washing Roe away.  

Overturning Roe will not suddenly make abortion illegal across this county. The abortion decision would go back to each state, and we all must be ready for such a pivotal moment in history, to rebuild a culture of life that is on solid legal ground.

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