“I’ve noticed that everyone who is for abortion has already been born.” – President Ronald Reagan
Today is the 47th March for Life in Washington, D.C. For nearly five decades, dating back to the one-year anniversary of the abominable Roe v. Wade decree, Americans from all walks of life have braved the January cold to march together in solidarity with the most vulnerable subset of the human population: The unborn. It is a remarkable display of unity in defiance of a grave injustice that stains our collective national conscience.
Roe, of course, is just as morally abhorrent as it is constitutionally fabricated. As I explained earlier this week on Liz Wheeler’s One America News program, there is nothing whatsoever in the original public meaning or plain text of the Fourteenth Amendment Due Process Clause — which states, “nor shall any state deprive any person of life, liberty, or property without due process of law” — that transmogrifies the inherently elitist U.S. Supreme Court into an institution that can unilaterally impose abortion policy upon a nation as diverse as ours. As U.S. Court of Appeals for the 11th Circuit Judge William Pryor said at his Senate Judiciary Committee confirmation hearing, Roe is “unsupported by the text and structure of the Constitution, [and] it has [also] led to a morally wrong result. It has led to the slaughter of millions of innocent unborn children.”
But don’t take it from just avowed pro-lifers; iconic leftist Justice Ruth Bader Ginsburg has even opined that Roe was incorrect, as a matter of law. Ditto famously liberal longtime Harvard Law School professor John Hart Ely, who once said that Roe “is not constitutional law and gives almost no sense of an obligation to try to be.”
The fight for the unborn is the human rights struggle of our time. The comparisons to antebellum chattel slavery are remarkable: Both involve treating fellow human beings as property to be harmed at will, both were upheld by the Supreme Court on constitutional grounds via the Fifth/Fourteenth Amendment doctrinal ruse known as “substantive due process,” both are deemed beyond reproach by judicial supremacists, and the opposition to each is led by the Republican Party. As iconic conservative Princeton University professor Robert P. George co-wrote in 2004 at National Review: “For the Republicans” of the Civil War era, “the idea that human beings could be reduced to the status of mere ‘objects’ to be bought and sold and exploited for the benefit of others was a profound violation of the intrinsic dignity of creatures made in the image and likeness of God.” Abortion is similarly a “profound violation of the intrinsic dignity of creatures made in the image and likeness of God.” ”
The reality is that the conservative movement, and the Republican Party with which it is intertwined, simply must come to view Roe and its murderous progeny as indistinguishable from the infamous Dred Scott decision of 1857 that directly precipitated the Civil War. “As with Roe, the Dred Scott decision lacked any warrant in the text, logic, structure, or original understanding of the Constitution,” Dr. George wrote four years ago at First Things. “It was, as Abraham Lincoln rightly insisted, an act of judicial will, not law, and as such an assault on the very Constitution in whose name the justices purported to act. Dred Scott, like Roe v. Wade, was a case of judicial usurpation in the cause of mass dehumanization.”
It is wonderful that President Donald Trump spoke today to the March for Life. But to oppose abortion yet support judicial supremacy — the notion that the Supreme Court does not merely render judgments for discrete litigants in a given Article III “case” or “controversy,” but is the exclusive and final arbiter of broader legal/political principle for the nation — is not to oppose abortion at all. It is self-contradictory and nonsensical. President Trump would do well to follow the lead of his predecessor Abraham Lincoln, who issued the following famous remarks as part of his magisterial First Inaugural Address (emphasis my own):
I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.
Roe is not merely a human rights tragedy of unfathomable scale. It is also a bastardization of our entire system of self-governance. It is a bastardization of the republicanism upon which the nation was founded. And it deserves to be treated with no more dignity than the righteous irreverence with which Lincoln treated Dred Scott.