Indefensible Roe — An Introduction

The whole thing is a farce. The justices know it. We know it. And abortion proponents know it.

Dobbs v. Jackson Women’s Health Organization, the Mississippi case where abortionists are challenging the state’s “Gestational Age Act,” should force the United States Supreme Court to reevaluate its disastrous abortion jurisprudence.

Because Mississippi’s law places strict limits on abortion after 15 weeks, it runs straight up against the Court’s nonsensical and arbitrary “viability” pronouncement which has somewhat guided the Court through its oversight of more than 60 million babies aborted since 1973. In Roe v. Wade, the Court invented a right to abortion out of nothing and established limits based on an arbitrary trimester framework, but it also recognized a state’s interests in the health of mothers and “potential life,” as it cunningly termed babies in the womb. Only when those state interests become “compelling” are states able to regulate abortion, perhaps even ban it.  The Court explained:

With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.

The Court’s mushy pronouncement ensured it would continue to act as a super-legislature, second-guessing virtually every state attempt to protect life. Therefore, we continue to see a never-ending series of cases at the Supreme Court with citizens from different states trying to assert their interests in the health of mothers and protecting children in the womb.

Americans overwhelmingly support protecting vulnerable babies with 75% of them saying abortion should be banned after the first trimester. That number includes 61% of those who identify as “pro-choice.” With those numbers, it is no wonder state legislatures, composed of the very same people serving in public office, seek ways to protect mothers and their babies in the womb as an expression of the values of the people they represent—from across the political spectrum.

But the Supreme Court will not allow that. Even after its Roe analysis was proven unworkable, in the 1992 Planned Parenthood v. Casey landmark decision, when it had the opportunity to overturn Roe officially, it refused to correct its unconstitutional overreach (even while saying it “reject[ed] the rigid trimester framework of Roe …”), and instead transformed it by legal alchemy establishing a new “undue burden” test. The Court explained, “An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”

So, the Court chose to expand its legislative role in abortion public policy, believe it or not. Any policy, whether an ultrasound requirement or waiting period or parental consent procedure, or health and safety standard, will inevitably be subjected to the Supreme Court’s super-legislative oversight. Citizens of a state want to ensure that abortion clinics have hallways that are wide enough so that an emergency gurney can pass through it, off to the Supreme Court they must go (after 5 or 10 years of lower court litigation) to obtain approval once they are challenged, as they always are, by Big Abortion.

The whole thing is a farce. The justices know it. We know it. And abortion proponents know it.

This series will explore how Roe is indefensible legally, scientifically, culturally, morally, as a matter of policy, and of course, spiritually speaking, so that the only honest pathway for the Court to take is that of a complete reversal.

With the background laid out in this introduction, we will focus next on the legal track of the “Indefensible Roe.”

Stay tuned.