The U.S. Supreme Court’s decision to overturn Roe v. Wade and Planned Parenthood v. Casey is clearly good news and a sign of progress. The correction by the majority opinion in the Supreme Court, as crafted by Justice Alito, is a much-needed return to Constitutional facts: “The Constitution does not confer a right to abortion… Roe and Casey are overruled.”
It is fundamental that the founding document of the United States be purged from the egregiously false interpretation that it conferred on the Supreme Court the right to grant women the legal right to kill their babies. It is lamentable that it took the Supreme Court nearly 50 years to state that obvious fact.
The decision is helpful in another regard: it restores greater legitimacy to the Supreme Court. It was clearly a delegitimizing factor for the Court to have ruled that, based on their decision, mothers could kill their children in America. The decision helps to dissipate the question of the Court’s legitimacy.
The overturning of Roe and Casey also allows states to enforce laws to protect the lives of the undelivered babies in the womb. The unchecked slaughter of about 60 million babies since 1973 is an unprecedented evil in human history. The decision also demonstrated the overwhelming historical evidence of the pro-life protections of babies in the womb before Roe and Casey – namely, that nearly every state in the Union had established protections and criminalized the killing of babies in the womb.
Finally, the decision creates cultural impetus for further laws to be enforced to protect the right to life of the child in the womb. This impetus, though, cuts both ways. The decision in its text, from a historical perspective, obliterated the false claims and improper understanding of stare decisis maintained by the Court’s minority opinion, but failed to render fully the necessary relation of stare decisis to justice.
The pro-life community’s decades-long grassroots efforts against the abortion industry, coupled with the undercover investigations publicly unmasking the horrors of that industry and Planned Parenthood, have certainly helped make the ruling possible, without which even more babies would have been sacrificed.
The Dobbs Decision’s First Fundamental Error
Nonetheless, the majority opinion’s legal, moral and philosophical reasoning was deeply flawed. The theoretical errors that allowed Roe and Casey survived the majority opinion and are visible also in the responses of varied pro-life outfits that continue to rest the pro-life cause on unsound theoretical foundations that have also contributed to the delay of justice for babies in the womb. In the aftermath of the decision the immediate reaction was tainted by many who offered their analysis, but had in fact never read the actual decision.
One can cite, for example, the inability of religious and pro-life leaders to see that the foundational reasons for the decision are simply part of the logic of the pro-abortion movement, thus unsustainable as an example of justice or right reason. For instance, Cardinal Joseph Tobin (Newark), proclaimed: “The United States Supreme Court’s ruling on Dobbs v. Jackson Women’s Health Organization to overturn the 1973 decision that legalized abortion nationwide recognizes that even the most helpless and dependent human beings have a right to life and possess inherent dignity and worth.” Cardinal Tobin claims that the decision vindicated the right to life of the unborn. Archbishop Nelson Perez of Philadelphia and others echoed this error: “I am grateful to the Justices … for their opinion, which affirms the deep value inherent to every human life.”
Yet the Court did not affirm this. The Dobbs decision states exactly the contrary: “Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth.” Here the Court proclaimed that they are not affirming that babies in the womb have any rights, nor did they state when, if at all, they possess such rights or even that their rights are to be perceived from the decision to be equal to the rights enjoyed after being born.
Alito and company do not affirm that a right to life exists or that the child in the womb has equal rights to any of us after birth. The decision makes no moral, philosophical or scientific claims about the child’s status or necessary legal protections. Undoubtedly, the celebratory tone of these bishops erroneously presumed that the teaching of the Catholic Church – which has been clear and consistent for 2022 years, condemning abortion without exception – was being affirmed by the Supreme Court. Clearly, it was not.
The Second Error
The second error of interpretation regarding the Dobbs decision is exemplified by Archbishop Jose Horacio Gomez, president of the USCCB: “For nearly fifty years, America has enforced an unjust law that has permitted some to decide whether others can live or die; this policy has resulted in the deaths of tens of millions of preborn children, generations that were denied the right to even be born… This truth was grievously denied by the U.S. Supreme Court’s Roe v. Wade ruling… We thank God today that the Court has now overturned this decision.”
To be clear, the court did not do this either. The Dobbs decision did not affirm that no one may “… decide whether others can live or die.” The contrary was repeatedly affirmed in the majority opinion. In its opening lines the Dobbs decision conferred authority on the states and the people “to decide who lives and who dies.”
It repeatedly stated, “… the authority to regulate abortion is returned to the people and their elected representatives…” And yet again, promptly forgetting that there is no such thing as an abortion right, they falsely affirmed, “…the people of the various states may evaluate those interests differently. In some states, voters may believe that the abortion right should be even more extensive that the right that Roe and Casey recognized…”
This vacuous mantra of the Dobbs decision again affirms the lethal error that gave us Roe and Casey. The Alito reasoning incorrectly affirms that a rightful authority exists that can decide which innocent babies will live or die, which is contrary to a sound view of reality, a proper understanding of justice, and a sound pro-life creed which holds that no one has the right to sanction the death of the child in the womb – not the Courts, the states, or the people.
This seems to escape a vast majority in the pro-life movement. The false, lethal, assumption that the states have this authority is already wreaking havoc on the improper laws proposed in several “pro-life” legislatures.
The majority opinion also made a claim of power to grant and restore the authority to sanction the killing to the states: “For this reason, it is essential that this Court maintain the power to restore authority to its proper possessors by correcting constitutional decisions that, on reconsideration, are found to be mistaken… It is time to heed the Constitution… That is what the Constitution and the rule of law demand… The Court usurped the power… that the Constitution unequivocally leaves for the people.” Pro-lifers should be loudly stating that the Constitution does not confer the power to kill the innocent on anyone.
Unaided by Democrats, so called pro-life Republicans – the PLINOs (Pro-Life In Name Only) – seek laws that condemn the undelivered babies to death before 20, 16, 12 or six weeks in the womb, or whatever suits their political risk threshold. Aiding this effort are “pro-life” groups that seem more concerned with electing their favorite politicians than securing the right to life for millions of babies. In truth, no court, state legislature or referendum of the people has any moral, legal or just authority to decide which babies live or die. Any claim by anyone to this authority is intrinsically anti-democratic and totalitarian.
The false notion that this authority exists is the warped logic that sustained Roe and Casey for 50 years and is eroding the proper understanding of democracy and justice in America. That pro-life “leaders” are celebrating this lethal error as wisdom is missing the point of the pro-life movement. In reality, the perverse notion that the Courts, the states or anyone else has the right to decide which babies live or die is the theoretical foundation of the pro-abortion movement.
The right to life is an unalienable right, as stated by the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and the pursuit of happiness.” An unalienable right cannot be restrained or repealed by human laws. This means the states have no moral, legal or constitutional right to decide which babies live and which ones are to be put to death through abortion. This is not unique to the American Constitution. No Constitution anywhere in the world can licitly, justly, or with proper authority usurp the right to life of the child in the womb. In fact, you do not even have to read their Constitutions to know this.
The Court imagined in their “Solomonic wisdom” that the problem and injustice that needed to be corrected was the question of proper authority, namely, a correction on who truly has the authority to decide when the unborn live or die: “Given that procuring an abortion is not a fundamental constitutional right, it follows that the States may regulate abortion for legitimate reasons…” From a logical or moral point of view, it does not follow that the states have a right to decide who lives and who dies, just because the right to abortion cannot be found in the Constitution. Thus the Alito-Dobbs understanding of the problem, that the Supreme Court had unjustly usurped power from the states to decide who lives and who dies, is equally absurd. The problem in America is not who sanctions the killing. The problem is the killing of the unborn and the violation of their fundamental, unalienable right to life. It makes no difference whether the Supreme Court or the state “legalizes” the killing.
The Dobbs moral reasoning that the bishops and so many pro-lifers fail to notice is that the right to life is not up for deliberation. All that legislators can deliberate upon is how to better protect the right to life, not when that right will be granted. The Dobbs decision, contradicting its previous affirmation that no abortion right is found in the Constitution, goes on to declare, “But the people of the various States may evaluate those interests differently. In some States, voters may believe that the abortion right should be even more extensive than the right that Roe and Casey recognized. Voters in other States may wish to impose tight restrictions based on their belief that abortion destroys an ‘unborn human being.’ ”
The Dobbs decision goes on to explain that the problem has always been who has the authority to confer and regulate such a “right,” and to affirm that, contrary to all science and the reality of abortion, that the pro-life movement’s opposition to abortion is based on “their belief that abortion destroys an ‘unborn human being.’“ These justices must get acquainted with the abortion procedures to understand who is being destroyed in the process. Indeed, their quotation marks around “unborn human being” show their lack of grasp of the reality of abortion.
The majority decision in Dobbs also affirmed that no right to abortion is derived from our nation’s history or tradition, thus the Constitution has no sustaining argument to claim a cultural tradition of the invented Roe and Casey right. If this is so, then how will a state constitution find this historical or cultural precedent to grant abortion rights, since the states are an intrinsic component of our Union? On what grounds does the Dobbs majority imagine that states can now invent this right anew? By what reasoning will they now choose whether babies will die at 20, 16, 12 or six weeks in the womb? Indeed, they imagine that the states from the penumbras of their own constitutions now have the authority to invent that right.
This is Roe and Casey in motion again, this time authored by “pro-life” legislators and leaders. Most countries in Europe have abortion limitations prior to 15 weeks, but the struggle of the pro-life movement in these countries is precisely to eradicate these unjust laws. Just because “pro-lifers” draft these same criteria and absurd conclusions does not make these laws any different than the Machiavellian edicts of the pro-abortion movement.
House Minority Leader Kevin McCarthy told CNN he is prepared to support a national 15-week abortion ban. Chris Smith apparently was previously working on a “law” that would allow the killing in the first five months. Likewise, DeSantis, Youngkin, and others gleefully proclaimed varied opinions about when some shall live and others die.
A cursory reading of the 14th Amendment (it is not the only place), lays to waste the false claim that the Constitution has nothing to say about this newly discovered false claim to authority by the states. It reads in part, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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 pro-life movement must take distance from the Republican Party, as a human rights movement is impaired in their witness by the desire of many pro-life leaders to remain relevant in the political realm. Pro-life leaders looking the other way will only continue to delay justice for the unborn.
The Third Error
The third error now percolating into the ranks of the pro-life movement is the Court’s statement that the states can regulate the right to life. Having shown already that no one has the right to pass laws to condemn the child in the womb to death, it is critical to understand that the right to life de facto cannot be regulated, unlike other rights – right of association, free speech, private property, etc. – which can under certain circumstances allow for just regulation. You can have certain limitations to free speech and still not lose the right altogether. You can have arguable COVID-19 regulations of the right of association, yet that essential right remains.
But the right to life is metaphysically not like that, because there is no middle ground between life and death. “Regulating the right to life” produces the loss of the right for those not covered under the regulation. If you can have the right to life at 16 weeks, the consequence is that every human being before 16 weeks will not have the right and can therefore be put to death. No matter when you seek to limit the right, regulate its standing in law, the consequence is that you destroy that right for those not covered by the law’s extension. The right to life can therefore only be upheld and protected in society entirely (no term limits, no exceptions) or abolished and denied permanently, for those excluded from the law’s protection. A “regulated right to life” is a contradiction in terms. No state law can vindicate the right to life while regulating it.
In logic, this is the Principle of the Excluded Middle, one of the four basic principles of the right rules of reasoning and logic. The principle states the obvious: there is no middle ground between being and not being, or, in our case, between being alive and being put to death. Any attempt to regulate the right to life will mean that those not covered by the “regulation” have immediately lost the right to live. The right to life cannot be preserved if limited or regulated in any way, for only two possibilities exist: the right to life will be upheld or trampled upon.
To hear pro-lifers speak of the right to life as the ability of the states to install “common-sense regulations” on the right is an absurdity. Any regulation, from conception to natural death, means that the right is lost for those outside of your invented limitation on the right to life. The right is gone immediately, as a direct consequence of “common sense regulations.” This right is only upheld or destroyed; it is not the subject of regulation, not by our personal preference or “interests,” as the Alito opinion implies. It is destroyed as a factual reality if limited in any way. The right to life is, in that sense, indivisible.
That it cannot be regulated is not a question of the temperament of certain pro-lifers. Some are trying to taint those upholding this obvious truth as the “extreme wing” or the more “radical” reformers, as opposed to “pro-lifers” seeking consensus as their guiding light. This right cannot withstand regulation. Regulating guns, speech, or the right of association is debatable, because in those cases regulation per se does not abolish the right itself. Not so with the right to life.
For this reason, no exceptions are the only possibility of upholding the right to life. Postulating exceptions at the outset is another unjust law, for it usurps the right to life from those not covered by the law. Pro-life leaders pretending there is a third way, the “way of consensus,” should notice the incompatibility of their proposals with the pro-life movement and the dignity of the child in the womb.
The Political Error
The PLINO Republicans must be called out for their lethal timidity, as should the pro-life groups lending false cover to their political friends. A crass pragmatism has set in the minds of some “pro-life” leaders who have come to imagine that, when they counsel legislators on how to craft laws regarding the issue of abortion, they are in full possession of the right to decide the cutoff point that will determine which babies will be possible to kill with impunity. The “pro-life” gatherings with these politicians also imagine that they have a right to decide who lives and who dies. To propose legislation with these arbitrary lines based on viability or mostly what they believe is a smart political “consensus” is the same legal abuse the pro-life movement has fought for 50 years.
These PLINOs and their pro-life allies, like the Caesars of old, gather behind the scenes to vote up or down on who lives and who dies. To legislate in such manner is to effectively pass and codify laws that are the death sentences to millions of babies in the womb but sail under a pro-life flag. They will preach that all human beings are equal, but the actual political practice is that some are more equal than others. Therefore, the pro-life cause cannot be subordinated to the political interests of the Republican Party.
One of the most prevalent manifestations of the post-modern movement in America is a crass pragmatism – not the kind that wants to get things done, but one cloaked under the mantle of effectiveness, banishing all trace of truth and objectivity from the public square. John Dewey’s and, in more recent times, Richard Rorty’s moral relativism and denial of truth has infected academia and the public square under the guise of American pragmatism. The pro-life movement is not immune to these influences, and many of their leaders have absorbed it in spades. These “pro-life” leaders are quite ready to make these Faustian political deals. But you cannot serve two gods.
Most abortions take place in the child’s early development. But the easy accommodation these politicians are prepared to support is based on polls indicating that most Americans oppose late-term abortions. The politicians love the accommodation, as the push is not so strenuous if they can pass edicts condemning to death thousands of babies in the womb before 20, 16, 12 or even six weeks. They pretend they banned abortion in their states when in reality what they are doing is codifying abortion in their laws. All these are “laws” which aptly, while sitting in a jail in Birmingham, Martin Luther King Jr., called the “corruption of the law.” These are “laws” we will have to fight to abolish, perhaps with even greater difficulty, the moment they are passed.
Mississippi has exceptions for fetal abnormalities, other states likewise for rape and incest. Are these not the very things that were so abhorrent about pro-abortion legislation around the world? To arrive to the same point but to be authored by the “pro-life” forces is a missed opportunity that will ensure babies’ continued killings in America for decades to come. The grassroots pro-life movement should openly condemn such efforts and cease to support groups that imagine they have such authority.
The right to life conferred by the Creator to every human being is not something these legislators and “pro-lifers” have a licit right to usurp. Those that are true in the pro-life movement should not so cheaply sell their support to these politicians. You have fought for fifty years and now you should demand that your elected representatives fight to vindicate the right to life of all babies in the womb.
Some day in the future, the Dobbs decision will be recognized for the aberration and error it perpetuated. It, too, will have to be corrected, and maybe decades from now later generations will marvel that the pro-life leaders in America were celebrating the immoral, legally flawed reasoning of the Dobbs decision. In closing, it claimed, “The Casey plurality was certainly right that it is important for the public to perceive that our decisions are based on principle, and we should make every effort to achieve that objective by issuing opinions that carefully show how a proper understanding of the law leads to the results we reach.” In this regard the majority decision failed for operating on the fundamental error and irrationality of Roe and Casey.
In 1974, Aleksandr Solzhenitsyn, a dissident under the Soviet Union, released the text of “Live not by Lies.” Czech President Vaclav Havel would echo Solzhenitsyn’s teaching in his own resistance to Communism in the “The Power of the Powerless.” The heart of their teaching – which matters because they helped bring down a tyrannical regime – was that living in the truth is the only way to overcome the enemy; that lies, errors, and false political accommodation must be avoided to maintain the power of the cause.
All of these errors are weakening the cause of the child in the womb. The inability of the pro-life movement to register and unmask these lies will only prolong the injustice. The fear of not being relevant, which now grips so many pro-life leaders, is not something the real dissidents considered significant. The opportunity cost for resistance in the Soviet Union and Nazi Germany was real. It was not the American tragedy of being cancelled by Twitter or the Republican Party.
Solzhenitsyn’s words should reverberate in our souls in these days of obfuscation: “But if we shrink away, then let us cease complaining that someone does not let us draw breath—we do it to ourselves!”
Marcel Guarnizo is a philosopher-theologian, political commentator, and columnist.
The views expressed in this piece are those of the author and do not necessarily represent those of The Daily Wire.