The Supreme Court’s (nonexistent) argument for the viability standard

"Viability," in one sense of that term, is when an unborn child can survive, albeit with assistance, outside of the womb. The U.S. Supreme Court ruled in Roe v. Wade (1973), and reaffirmed in Planned Parenthood v. Casey (1992), that viability is the point at which the state first has a "compelling interest" in protecting the life of a developing human being.

Thus, according to Roe and Casey, only after viability may the state, in theory if not really in practice (given the mandatory post-viability exception defined broadly in Doe v. Bolton), choose to protect the unborn. Before viability, the Court decided, the killing of human beings in utero must be permitted for any reason.

But what constitutional, legal, historical, or moral justification is there for supposing that the physical dependence of one human being on another requires that the law permit the killing of the former?

Here is the Court's entire argument in Roe v. Wade for using the viability criterion:

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.

That's seriously the entire argument (you can read the Roe decision for yourself). It is, of course, circular reasoning. Viability is important, the Court says, because that's when a child can live outside the womb (the definition of viability). Viability is important, that is, because it is viability.

"[T]he Court's defense seems to mistake a definition for a syllogism," noted the eminent Yale law professor John Hart Ely (who personally supported legalized abortion). Indeed, "scholars from a wide variety of backgrounds have recognized," writes University of Georgia law professor Randy Beck, that "Roe literally provided no argument in favor of treating viability as the controlling line, much less an argument grounded in constitutional principles."

Did the Court at least manage to offer a reason for the viability criterion when it reconsidered the issue in Planned Parenthood v. Casey? Amazingly, no. Here is the Court's argument in Casey:

[V]iability, as we noted in Roe, is the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can, in reason and all fairness, be the object of state protection that now overrides the rights of the woman.

This, again, is not actually an argument. The Court simply provides the definition of viability and then, without offering any reason, concludes that it makes all the difference in deciding who may be protected from lethal violence and who may not be. If we do take this to be an "argument," it is a fallacious one, as Francis J. Beckwith writes:

For the Court to make its argument valid, it would have to add to its factual premise [the fact of fetal non-viability] the normative premise: whenever a human being cannot live on its own because it uniquely depends on another human being for its physical existence, it is permissible for the second human being to kill the first to rid the second of the burden.

The Court assumed that premise in both Roe and Casey. The Court has never argued for it.

The private papers of the justices suggest that the author of Roe, Justice Harry Blackmun, under the influence of Justice Lewis Powell and others, chose viability arbitrarily after considering other, equally arbitrary criteria. Justices Powell and Thurgood Marshall favored drawing the line at viability (rather than earlier) for the practical reason that it allowed a larger window of time during which women could have abortions—a policy outcome that the justices personally liked.

A decade later, Justice Sandra Day O'Connor (in her dissent in Akron v. Akron Center for Reproductive Health), who went on to co-author the plurality opinion in Casey, called viability "no less arbitrary" than any other point in pregnancy. And the Casey decision itself acknowledged that viability "may seem somewhat arbitrary," but held that, nevertheless, the right to abortion "must not be extinguished for want of a line that is clear."

So the justices (in both Roe and Casey) had, as far as we know, no reason whatsoever for thinking that viability is of actual significance (constitutionally or morally). That explains why they have never been able to give any reason.

"The arbitrariness of the viability line is confirmed," wrote dissenting Justice Antonin Scalia in a footnote to his Casey opinion, "by the Court's inability to offer any justification for it beyond the conclusory assertion that it is only at that point that the unborn child's life 'can in reason and all fairness' be thought to override the interests of the mother." Scalia added:

Precisely why is it that, at the magical second when machines currently in use (though not necessarily available to the particular woman) are able to keep an unborn child alive apart from its mother, the creature is suddenly able (under our Constitution) to be protected by law, whereas, before that magical second, it was not? That makes no more sense than according infants legal protection only after the point when they can feed themselves.

In its Casey decision, the Court wrote, "[A] decision without principled justification would be no judicial act at all." That's true. Roe v. Wade and Planned Parenthood v. Casey, therefore, are not judicial acts. They are judicial embarrassments.

Supreme Court decision should put spotlight on Whole Woman's Health

This week's legally outrageous Whole Woman's Health v. Hellerstedt decision has undermined efforts to hold the abortion industry accountable and to safeguard the health of pregnant women. To see the real tragedy of the Supreme Court's ruling, consider the lead plaintiff in the case, whose name will now forever be tied to this appalling decision.

Whole Woman's Health (WWH) is a Texas-based chain of abortion centers that expanded to Minnesota in 2012. WWH is now the second-leading practitioner of abortion in our state (behind only Planned Parenthood).

WWH's track record in Texas shows why the Texas safety provisions struck down by the Court were important—and why WWH was so committed to stopping them. Justice Samuel Alito, during oral arguments back in March, noted that there had been "instance after instance where Whole Woman's facilities have been cited for really appalling violations when they were inspected. Holes in the floor where ­­rats could come in, the lack of any equipment to adequately sterilize instruments." (Alito went on to vigorously dissent from the Court's awful ruling.)

Indeed, WWH has been cited many, many times for health code violations. In 2007, for example, the Texas Department of State Health Services (DSHS) fined WWH of Beaumont $3,050 for five different violations.

In 2011, the Texas Commission on Environmental Quality fined WWH of Austin and WWH of McAllen $40,410 for illegally disposing of the remains of aborted children. In 2012, the Texas Medical Board disciplined two WWH abortionists for violating standards of patient care. They were both fined $3,000 and required to take a medical education course.

A 2013 inspection of the Beaumont clinic noted that "the facility failed to provide safe and sanitary equipment in the patients' procedure rooms." Inspectors found "numerous rusty spots on the suction machines used on the patient" that had "the likelihood to cause infection," according to the DSHS report. They also found "expired drugs," unlabeled "pre-filled medication cups," and "a large hole in the cabinet flooring ... [that] had the likelihood to allow rodents to enter the facility." The DSHS concluded: "[T]he facility failed to provide a safe environment for patients and staff."

A 2013 inspection of WWH of San Antonio determined that it "failed to implement and enforce acceptable environmental controls in cleaning and preparing instruments for sterilization." An inspection that same year of WWH of McAllen found that "personnel ... were not following proper sterilization procedures." In 2014 and 2015, inspectors uncovered numerous safety violations at WWH clinics in Austin, Fort Worth, San Antonio, and McAllen.

Year after year, clinic after clinic, WWH never seems to get its act together. This should be especially concerning for Minnesotans. Unlike Texas, our state does not license or inspect abortion facilities at all—we have no way to determine if WWH has imported its shoddy conditions and practices into Minnesota.

Whole Woman's Health and other abortion facilities must be held to a higher standard. Whole Woman's Health v. Hellerstedt has, sadly, made it more difficult to do so.

The problems with the Supreme Court's abortion industry regulations decision

Yesterday, in the case of Whole Woman's Health v. Hellerstedt, the U.S. Supreme Court struck down two abortion-related measures in Texas. One requires that doctors who perform abortions have admitting privileges at a local hospital in order to ensure continuity of care in the event of complications. The other requires that abortion centers meet the same health and safety standards as other facilities that perform outpatient surgery.

Both of these are reasonable efforts to safeguard the health of women. The Court, in a 5-3 vote, has now ruled them unconstitutional. Justice Stephen Breyer's majority opinion claims that the two measures improperly impose an "undue burden" on women seeking abortion, a standard for judging abortion-related laws that the Court had previously invented and applied in its 1992 Planned Parenthood v. Casey decision.

Dissenting Justice Sam Alito

Justice Samuel Alito, in a dissenting opinion joined by Chief Justice John Roberts and Justice Clarence Thomas, blasts yesterday's decision for violating "settled procedural rules" and for failing (and for hardly even trying) to establish that the Texas provisions actually impose any "undue burden." Alito writes: "The Court's patent refusal to apply well-established law in a neutral way is indefensible and will undermine public confidence in the Court as a fair and neutral arbiter." The majority, in short, went far out of its way to reach the judgment it wanted to reach.

Justice Thomas also offered a separate dissent. While stressing that he remains "fundamentally opposed to the Court's abortion jurisprudence," Thomas notes that "even taking Casey [and its "undue burden" criterion] as the baseline ... the majority [in yesterday's Whole Woman's Health decision] radically rewrites the undue-burden test." The Court, he explains, applies precepts that "are nowhere to be found in Casey or its successors" in order to strike down Texas's provisions. Thomas concludes, quoting the late Justice Antonin Scalia, that the decision "exemplifies the Court's troubling tendency 'to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion, is at issue.'"

The fundamental problem is that, beginning with Roe v. Wade in 1973, the Court has been in the business of creating abortion policy (specifically, a policy of abortion-on-demand) and imposing it on the nation—even though there is no constitutional basis for such action. Whole Woman's Health v. Hellerstedt is a clear step in the wrong direction.

Yesterday's decision underscores the necessity of having Supreme Court justices who apply the Constitution as it actually is. Only then will the Court respect the right of the American people, through their elected representatives, to enact laws that protect women and unborn children and that hold the abortion industry accountable.

Supreme Court ruling on abortion facilities poses safety risks for women

The following news release was issued on June 27, 2016.

Women's safety lost out to the abortion industry in today's U.S. Supreme Court decision overturning a Texas law that applied basic safety standards to abortion facilities. Facility safety requirements and admitting privileges at a nearby hospital in cases of emergency were deemed unnecessary by a majority of the Court, which ruled in favor of an abortion industry that fiercely opposes regulation.

"With this ruling the Supreme Court has sided with the wealthy and powerful abortion industry rather than vulnerable women," said Scott Fischbach, Executive Director of Minnesota Citizens Concerned for Life (MCCL), the state's oldest and largest pro-life organization. "An unregulated abortion industry, which performs thousands of invasive surgical procedures every day, is very bad news for women."

Lack of abortion industry oversight has been harmful—and in a few cases, deadly—for women. Dangerous conditions and unscrupulous providers have been exposed at abortion centers in numerous other states. For example, abortionist Kermit Gosnell conducted criminal activity for years at his abortion facility in Philadelphia while the state provided no oversight. He was convicted in 2013 on three counts of murder, another count of manslaughter and 21 felony counts.

In Minnesota, abortion facilities are not even licensed or inspected. The Minnesota Department of Health has no authority to even enter these facilities as it does for other outpatient surgical centers.

"Reasonable regulation serves to hold the abortion industry accountable and ensure a degree of safety for women," said Fischbach. "Today's Court action, which reversed common-sense regulations, is deeply disturbing for everyone who cares about the health and safety of women."

Whole Woman's Health challenges safety standards before Supreme Court

This week the U.S. Supreme Court heard oral arguments in a case challenging a Texas abortion law. The Texas provisions in question require that (1) abortion centers meet the same health and safety standards as other facilities that perform outpatient surgery and (2) abortion providers have admitting privileges at a nearby hospital to ensure continuity of care in the event of complications.

These commonsense measures are designed to protect the health of women. But the abortion industry is vigorously opposed to them. The lead plaintiff in this landmark Supreme Court case? Whole Woman's Health.

Whole Woman's Health (WWH) is a Texas-based chain of abortion centers that expanded to Minnesota in 2012. In fact, WWH is now the second-leading practitioner of abortion in our state (behind only Planned Parenthood).

WWH's own track record in Texas shows why the Texas law is so important—and why WWH is so committed to stopping it. Justice Samuel Alito, during oral arguments on Wednesday, mentioned that there had been "instance after instance where Whole Woman's facilities have been cited for really appalling violations when they were inspected. Holes in the floor where ­­rats could come in, the lack of any equipment to adequately sterilize instruments."

Indeed, WWH has been cited many, many, many times for health code violations. In 2007, for example, the Texas Department of State Health Services (DSHS) fined WWH of Beaumont $3,050 for five different violations.

In 2011, the Texas Commission on Environmental Quality fined WWH of Austin and WWH of McAllen $40,410 for illegally disposing of the remains of aborted children. In 2012, the Texas Medical Board disciplined two WWH abortionists for violating standards of patient care. They were both fined $3,000 and required to take a medical education course.

An Oct. 3, 2013, inspection of the Beaumont clinic noted that "the facility failed to provide safe and sanitary equipment in the patients' procedure rooms." Inspectors found "numerous rusty spots on the suction machines used on the patient" that had "the likelihood to cause infection," according to the DSHS report. They also found "expired drugs," unlabeled "pre-filled medication cups," and "a large hole in the cabinet flooring ... [that] had the likelihood to allow rodents to enter the facility." The DSHS concluded: "[T]he facility failed to provide a safe environment for patients and staff."

An Aug. 29, 2013, inspection of WWH of San Antonio determined that it "failed to implement and enforce acceptable environmental controls in cleaning and preparing instruments for sterilization." A Sept. 4 inspection of WWH of McAllen found that "personnel ... were not following proper sterilization procedures." In 2014 and 2015, inspectors uncovered numerous additional safety violations at WWH clinics in Austin, Fort Worth, San Antonio, and McAllen.

Year after year, clinic after clinic, WWH never seems to get its act together. This should be especially concerning for Minnesota. Our state does not license or inspect abortion facilities at all—we have no way to determine if WWH has imported its shoddy conditions and practices into Minnesota. Current proposed legislation, H.F. 606/S.F. 616, would rectify this problem by licensing abortion centers in the same way as other outpatient surgical centers and allowing for health inspections. The Legislature will consider the bill again during the upcoming session.

In the Supreme Court case, Whole Woman's Health v. Hellerstedt, the Court should uphold the Texas law. Measures to improve the safety of women are constitutionally permissible. They are also good public policy.

Whole Woman's Health must be held to basic standards—in Texas and in Minnesota.

Justice Scalia on the Constitution, abortion, and assisted suicide

U.S. Supreme Court Justice Antonin Scalia, who passed away Saturday, believed that the role of the Court is to faithfully interpret and apply the law as it actually is—not as the Court wants it to be. Making law and policy is the job of the elected branches of government. Judges should not be legislators.

That's why Scalia took the position he did on abortion and the Constitution. The Constitution simply does not require, as the Court mistakenly ruled in Roe v. Wade (1973), a nationwide policy of abortion on demand. In his dissenting opinion in Planned Parenthood v. Casey (1992), which upheld the "central holding" of Roe, Scalia explained:

The issue is whether [abortion] is a liberty protected by the Constitution of the United States. I am sure it is not. I reach that conclusion ... for the same reason I reach the conclusion that bigamy is not constitutionally protected—because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the long-standing traditions of American society have permitted it to be legally proscribed.

Therefore, Scalia concluded, "The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting."

Dissenting in Stenberg v. Carhart (2000), which struck down a state law banning partial-birth abortion, Scalia wrote:

The notion that the Constitution of the United States, designed, among other things, "to establish Justice, insure domestic Tranquility ... and secure the Blessings of Liberty to ourselves and our Posterity," prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd.

Hodgson v. Minnesota (1990) dealt with the details of Minnesota's parental notification law. In a complicated and divided outcome, the Court upheld the law as long as there is a judicial bypass option (Scalia would have upheld the law regardless). Scalia noted:

One will search in vain the document we are supposed to be construing for text that provides the basis for the argument over these distinctions; and will find in our society's tradition regarding abortion no hint that the distinctions are constitutionally relevant, much less any indication how a constitutional argument about them ought to be resolved. The random and unpredictable results of our consequently unchanneled individual views make it increasingly evident, Term after Term, that the tools for this job are not to be found in the lawyer's—and hence not in the judge's—workbox. I continue to dissent from this enterprise of devising an Abortion Code, and from the illusion that we have authority to do so.

Nor does anything in the Constitution prevent states from prohibiting assisted suicide or protecting against the dehydration and starvation of medically vulnerable patients. In Cruzan v. Missouri Department of Health (1990), Scalia wrote:

American law has always accorded the State the power to prevent, by force if necessary, suicide ... [T]he point at which life becomes "worthless," and the point at which the means necessary to preserve it become "extraordinary" or "inappropriate," are neither set forth in the Constitution nor known to the nine Justices of this Court any better than they are known to nine people picked at random from the Kansas City telephone directory.

Scalia was part of the unanimous decisions in Vacco v. Quill and Washington v. Glucksberg (1997), which held that there is no right to assisted suicide. In his dissenting opinion in Gonzales v. Oregon (2006), Scalia argued that the Attorney General is allowed, under federal law, to prevent the use of drugs in Oregon for assisted suicide:

Unless we are to repudiate a long and well-established principle of our jurisprudence, using the federal commerce power to prevent assisted suicide is unquestionably permissible. ... If the term "legitimate medical purpose" has any meaning, it surely excludes the prescription of drugs to produce death.

In Roe v. Wade and subsequent decisions, the Court usurped the authority of the American people and their elected representatives to determine abortion policy—and 58 million abortions have been the result. Some people want the Court to do the same with assisted suicide. To prevent that from happening—and to reverse Roe, allowing for greater protection for unborn children and their mothers—we desperately need more Supreme Court justices like Antonin Scalia.

The devastation of Roe v. Wade—and how to end it

Richard John Neuhaus called it "the most consequential moral and political event of the last half century of our nation's history."

On Jan. 22, 1973, the U.S. Supreme Court decided Roe v. Wade and its companion case, Doe v. Bolton. The Court ruled that abortion must be permitted for any reason before fetal viability—and that it must be permitted for "health" reasons, broadly defined in Doe (so as to encompass virtually any reason), all the way until birth. Roe legalized abortion on demand nationwide.

The harm of that decision is difficult to overstate.

2015 MCCL March for Life

Roe is unjust. The Court ruled that a particular class of innocent human beings (those in utero) must be excluded from the protection of the law and allowed to be dismembered and killed at the discretion of others. More than 58 million unborn children have now been legally killed, including more than 600,000 in Minnesota.

Roe is unconstitutional. "It is bad because it is bad constitutional law," wrote the eminent constitutional scholar and Yale law professor John Hart Ely (who personally favored legalized abortion), "or rather because it is not constitutional law and gives almost no sense of an obligation to try to be."

Roe is undemocratic. Roe and Doe struck down the democratically decided abortion laws of all 50 states. Because it lacked any constitutional justification, the Court's ruling usurped the authority of the elected branches of government to determine abortion policy.

Forty-three years later, what can we do?

Overturning Roe would allow states to once again enact their own abortion laws. But this requires at least one more Supreme Court justice committed to interpreting and applying the law as it actually is (rather than making it). And that requires electing a president who will nominate and senators who will confirm such a judge. Changes to the Court's composition in the past have already led to greater (though still very modest) protection for the unborn.

In the interim, we should continue the multi-pronged effort to reduce abortions. That means providing practical assistance and resources to pregnant women facing difficult circumstances. It means educating and persuading the public. And it means enacting legislation to save as many lives as currently possible.

The success of this strategy is tangible. The number of abortions has dropped 47 percent in Minnesota since its peak in 1980. Abortions have fallen 28 percent since 2006. Yet 10,123 unborn children were destroyed in 2014. Much, much more work remains to be done.

MCCL will hold its annual March for Life on Friday, Jan. 22, the 43rd anniversary of Roe v. Wade. The purpose of the March is to commemorate the lives lost to abortion and to call for renewed respect and protection for all members of the human family, especially unborn children and their mothers. It is an opportunity to re-energize, remobilize, and refocus. MCCL will introduce its 2016 legislative agenda during the event.

The March for Life begins at 12 noon on the Capitol grounds in St. Paul, followed by a short program at 12:30. We hope to see you there.

The three intractable problems of Roe v. Wade

On Jan. 22, 1973, the U.S. Supreme Court decided Roe v. Wade and its companion case, Doe v. Bolton. The Court ruled that abortion must be permitted for any reason before fetal viability—and that it must be permitted for "health" reasons, broadly defined in Doe (so as to encompass virtually any reason), all the way until birth. Roe and Doe legalized abortion on demand nationwide.

The New York Times proclaimed the verdict "a historic resolution of a fiercely controversial issue." But now, 42 years later, abortion is as unresolved and controversial as ever. Three intractable problems will continue to plague the Court and its abortion jurisprudence until the day when, finally, Roe is overturned.

Marchers at the MCCL March for
Life on Jan. 22, 2012

First, and most importantly, the outcome of Roe is fundamentally harmful and unjust. Why? The facts of biology show that the human embryo or fetus (the being whose life is ended in abortion) is a distinct and living human organism at the earliest stages of development. "Human development begins at fertilization when a sperm fuses with an oocyte to form a single cell, a zygote," explains the textbook The Developing Human: Clinically Oriented Embryology. "This highly specialized, totipotent cell marks the beginning of each of us as a unique individual."

Justice requires that the law protect the equal dignity and basic rights of every member of the human family—irrespective of age, size, ability, dependency, and the desires and decisions of others. This principle of human equality, affirmed in the Declaration of Independence and the United Nations' Universal Declaration of Human Rights, is the moral crux of western civilization. But the Roe Court ruled, to the contrary, that a particular class of innocent human beings (the unborn) must be excluded from the protection of the law and allowed to be dismembered and killed at the discretion of others. "The right created by the Supreme Court in Roe," observes University of St. Thomas law professor Michael Stokes Paulsen, "is a constitutional right of some human beings to kill other human beings."

After Roe, the incidence of abortion rose dramatically, quickly topping one million abortions per year and peaking at 1.6 million in 1990 before gradually declining to 1.06 million in 2011 (the latest year for which estimates are available). Under the Roe regime, abortion is the leading cause of human death. More than 57 million human beings have now been legally killed. And abortion has significantly and detrimentally impacted the health and well-being of many women (and men). The moral gravity and scale of this injustice exceed that of any other issue or concern in American society today.

The second problem with Roe is that it is legally, constitutionally mistaken. Justice Harry Blackmun's majority opinion claimed that the "liberty" protected by the Due Process Clause of the Fourteenth Amendment includes a "right of privacy" that is "broad enough to encompass" a right to abortion. "As a constitutional argument," notes University of Pennsylvania law professor Kermit Roosevelt (who favors legalized abortion), "Roe is barely coherent. The Court pulled its fundamental right to choose more or less from the constitutional ether."

The right alleged in Roe is blatantly contradicted by the history of abortion law in the United States. Ratification of the Fourteenth Amendment roughly coincided with enactment of a wave of state laws prohibiting abortion from conception with the primary aim (according to clear and abundant historical evidence) of protecting unborn children. Most of these statutes were already on the books by the time the Fourteenth Amendment was adopted in 1868, and many of them remained unchanged until Roe struck them down more than a century later. "To reach its result," Justice William Rehnquist thus concluded in his dissenting opinion, "the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment."

Blackmun's reasoning was fallacious, his facts erroneous, his key historical claims demonstrably false. The process behind the decision, we now know, was remarkably shoddy. Roe and Doe constituted a full-blown exercise in policy-making—the arbitrary (untethered to the Constitution) invention of a new nationwide abortion policy to reflect the personal preferences of a majority of the justices.

Even pro-choice legal experts don't try to defend Roe on its merits. "What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers' thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation's governmental structure," wrote the eminent constitutional scholar and Yale law professor John Hart Ely. "It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be."

Sign at the 1977 MCCL March for Life

Third, Roe is undemocratic. It struck down the democratically decided abortion laws of all 50 states and imposed abortion-for-any-reason nationwide, whether the people like it or not. Because the Court lacked any constitutional warrant for this move, it usurped the rightful authority of the elected branches of government to determine abortion policy.

The radical scope of the Roe regime was not and has never been consistent with public opinion, which favors substantial legal limits on abortion. (Polling questions on Roe are often inaccurate, and ignorance of the extent of the decision is widespread). Roe has disenfranchised millions and millions of Americans who will not rest while Roe and abortion on demand persist. They want to have a say. The Court decided they could have none.

So these are the intractable problems of Roe v. Wade. The Supreme Court abused the Constitution to usurp the authority of the people by imposing a gravely unjust policy with breathtakingly disastrous results.

Unjust. Unconstitutional. Undemocratic. Together, these problems will lead, eventually, to Roe's collapse.

The three intractable problems of Roe v. Wade

On Jan. 22, 1973, the U.S. Supreme Court decided Roe v. Wade and its companion case, Doe v. Bolton. The Court ruled that abortion must be permitted for any reason before fetal viability—and that it must be permitted for "health" reasons, broadly defined in Doe (so as to encompass virtually any reason), all the way until birth. Roe and Doe legalized abortion on demand nationwide.

The New York Times proclaimed the verdict "a historic resolution of a fiercely controversial issue." But now, 41 years later, abortion is as unresolved and controversial as ever. Three intractable problems will continue to plague the Court and its abortion jurisprudence until the day when, finally, Roe is overturned.

First, and most importantly, the outcome of Roe is fundamentally harmful and unjust. Why? The facts of biology show that the human embryo or fetus (the being whose life is ended in abortion) is a distinct and living human organism at the earliest stages of development. This was established long before 1973, though subsequent scientific and technological advances have greatly improved our knowledge of life before birth. As Dr. Horatio R. Storer explained in a book published in 1866, "Physicians have now arrived at the unanimous opinion that the foetus in utero is alive from the very moment of conception."

Justice requires that the law protect the equal dignity and basic rights of every member of the human family—irrespective of age, size, stage of development, condition of dependency, and the desires and decisions of others. This principle of human equality, affirmed in the Declaration of Independence and the United Nations' Universal Declaration of Human Rights, is the moral crux of western civilization. But the Roe Court ruled, to the contrary, that a particular class of innocent human beings (the unborn) must be excluded from the protection of the law and allowed to be dismembered and killed at the discretion of others. "The right created by the Supreme Court in Roe," observes University of St. Thomas law professor Michael Stokes Paulsen, "is a constitutional right of some human beings to kill other human beings."

After Roe, the incidence of abortion rose dramatically, quickly topping one million abortions per year and peaking at 1.6 million in 1990 before gradually declining to 1.2 million. Under the Roe regime, abortion is the leading cause of human death. More than 56 million human beings have now been legally killed. And abortion has significantly and detrimentally impacted the health and well-being of many women (and men). The moral gravity and scale of this injustice exceed that of any other issue or concern in American society today.

The second problem with Roe is that it is legally, constitutionally mistaken. Justice Harry Blackmun's majority opinion claimed that the "liberty" protected by the Due Process Clause of the Fourteenth Amendment includes a "right of privacy" that is "broad enough to encompass" a right to abortion. "As a constitutional argument," notes University of Pennsylvania law professor Kermit Roosevelt (who favors legalized abortion), "Roe is barely coherent. The Court pulled its fundamental right to choose more or less from the constitutional ether."

Justice Blackmun

The right alleged in Roe is blatantly contradicted by the history of abortion law in the United States. Ratification of the Fourteenth Amendment roughly coincided with enactment of a wave of state laws prohibiting abortion from conception with the primary aim (according to clear and abundant historical evidence) of protecting unborn children. Most of these statutes were already on the books by the time the Fourteenth Amendment was adopted in 1868, and many of them remained unchanged until Roe struck them down more than a century later. "To reach its result," Justice William Rehnquist thus concluded in his dissenting opinion, "the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment."

Blackmun's reasoning was ridiculous, his facts erroneous, his key historical claims demonstrably false. The process behind the decision was appallingly shoddy. Roe and Doe constituted a full-blown exercise in policy-making—the arbitrary (untethered to the Constitution) invention of a new nationwide abortion policy to reflect the personal preferences of a majority of the justices.

Even pro-choice legal experts don't try to defend Roe on its merits. "What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers' thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation's governmental structure," wrote the eminent constitutional scholar and Yale law professor John Hart Ely. "It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be."

Since 1973 the Court has modified Roe while stubbornly clinging to its "essential holding." But the Court's abortion jurisprudence cannot forever withstand the weight of fact and reason.

The first MCCL March for Life on Jan. 22,
1974, the anniversary of Roe v. Wade

Third, Roe is undemocratic. It struck down the democratically-decided abortion laws of all 50 states and imposed a nationwide policy of abortion on demand, whether the people like it or not. Because the Court lacked any constitutional warrant for this move, it usurped the rightful authority of the elected branches of government to determine abortion policy.

The radical extent of the Roe regime was not and has never been consistent with public opinion, which favors substantial legal limits on abortion. (Polling questions on Roe are often inaccurate, and ignorance of the extent of the decision is widespread). Roe has disenfranchised millions and millions of Americans, fostering divisive cultural and political battles. These Americans will not rest while Roe and abortion on demand persist. They want to have a say. The Court decided they could have none.

Overturning Roe would not make abortion illegal nationwide. It would not end the debate. It would return the question of abortion policy back to the people and their elected representatives, where it had been for almost 200 years, and where it always belonged.

So these are the intractable problems of Roe v. Wade. The Supreme Court abused the Constitution to usurp the authority of the people by imposing a gravely unjust policy with breathtakingly disastrous results.

Unjust. Unconstitutional. Undemocratic. Together, these problems will lead, eventually, to Roe's collapse.

Three reasons Roe v. Wade will fall

The U.S. Supreme Court-imposed abortion-on-demand regime of Roe v. Wade will one day fall. Why?

Roe will buckle under the weight of reason. "As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible," notes Edward Lazarus, former clerk to Justice Harry Blackmun (author of Roe) and supporter of legalized abortion. The U.S. Constitution cannot plausibly or rationally be said to include a right to abortion that precludes states dealing with this issue. Even the Court itself, when narrowly upholding Roe in 1992 (in Planned Parenthood v. Casey), could appeal only to stare decisis (i.e., past decisions should be reaffirmed because they are past decisions) and to virtual nonsense about "the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."

Roe will buckle under the weight of democracy. The Court in Roe, without constitutional warrant, usurped the authority of the American people to determine abortion policy. This "exercise of raw judicial power," as Justice Byron White put it, struck down the democratically-decided abortion laws of all 50 states and imposed a nationwide policy of abortion on demand whether the people like it or not. The radical extent of the Roe regime was not and has never been even remotely consistent with public opinion (polling on this question is often inaccurate, and ignorance of the extent of Roe is widespread). Roe has disenfranchised millions of Americans, fostering divisive cultural and political battles.

Finally, and most importantly, Roe will buckle under the weight of human rights. It decided that an entire class of innocent human beings must be excluded from legal protection and allowed to be killed for any reason. Roe, like Dred Scott v. Sandford before it, is profoundly unjust and contrary to the equal fundamental dignity and right to life of all members of the human family. And the consequences of the Court's folly—55 million unborn human beings killed, many women (and men) hurt emotionally, psychologically, physically—have been nothing less than catastrophic.

Unconstitutional. Undemocratic. Unjust. The era of Roe v. Wade must, and will, come to an end.

Fictional abortion history

As the 40th anniversary of Roe v. Wade draws near, a new essay by Justin Dyer recounts how false historical claims provided crucial support for that Supreme Court ruling. It begins:

Forty years after the Supreme Court's landmark decision in Roe v. Wade, prominent historians and lawyers continue to rely on a narrative history that is based on two demonstrably false premises: (1) abortion was a common-law liberty at the time of the American founding and (2) the primary purpose of anti-abortion laws in the 19th century was to protect women rather than the lives of unborn children. In the 1960s and 1970s, lawyers trying to build a case against century-old state abortion statutes trumpeted these two claims, all the while knowing they were false.

The point of these historical claims, as Ramesh Ponnuru has noted, was to portray "anti-abortion laws as an aberration from an American tradition" and "Roe as the restoration of that tradition." But in reality abortion never amounted to anything approaching a protected liberty in the common law (even in situations where abortion was not considered an indictable offense), and the primary rationale given by those who advocated strict state abortion laws in the 19th century was unequivocally the protection of the lives of the unborn. Even so, old myths die hard, and many commentators continue to repeat or repackage these two claims.

Fake history is one of the elements of the Roe decision that make it so astonishingly indefensible. As Dyer writes, Roe's author, Justice Harry Blackmun, relied almost exclusively on two articles by Cyril Means, a lawyer for the National Association for the Repeal of Abortion Laws (NARAL), to claim that 19th century laws against abortion weren't really about protecting the unborn, but were about protecting pregnant women in dangerous circumstances that no longer apply in today's world.

But clear historical evidence shows that Means's claims are false. There can be no real debate about that, and Blackmun should have known better. Roe is left with the absurd contention that the 14th Amendment contains a right (to abortion) that was blatantly repudiated by the very people who ratified the amendment—when they, at about the same time, passed numerous state laws banning abortion primarily for the sake of protecting unborn children.

Whoever said history doesn't matter? "This fraudulent history ... would be far less tragic," Dyer concludes, "if it did not involve matters of life and death."

Why the Supreme Court matters on Nov. 6

During every presidential election campaign, pro-life voters hear about the importance of choosing the candidate who will nominate to the U.S. Supreme Court judges who will vote to overturn Roe v. Wade. Some pro-lifers think nothing has changed, and so they have stopped caring or stopped taking abortion and the Court into account in the voting booth. But they are tragically mistaken.

Roe v. Wade was decided in 1973 by a 7-2 vote. By 1992, after Court appointments by Presidents Ronald Reagan and George H.W. Bush, the Court had made significant progress, voting in Planned Parenthood v. Casey to uphold Roe by only a 5-4 margin. And even that ruling -- while extremely flawed and disappointing -- revised Roe in ways that made more state-level pro-life laws (e.g., informed consent, waiting periods) possible, leading to modest but substantial reductions in the number of abortions through the 1990s and 2000s (abortions in the United States have dropped 25 percent since 1990). Those lifesaving laws could not have been enacted without the Supreme Court justices chosen by Reagan and Bush.

The election of Bill Clinton set us back. After his two pro-Roe nominees, the Court held a 6-3 pro-Roe majority and even voted to strike down a state ban on the barbaric partial-birth abortion procedure. Then George W. Bush took office. Bush replaced one anti-Roe justice (Rehnquist) with (probably) another (Roberts) and one pro-Roe justice (O'Connor) with (probably) an anti-Roe justice (Alito). So the balance was again 5-4 in favor of Roe -- just one vote away from having the votes necessary for a reversal. Moreover, the replacement of O'Connor with Alito allowed the Court to uphold (by a 5-4 margin) the federal partial-birth abortion ban in 2007's Gonzales v. Carhart, reversing the earlier decision. It was the first time since Roe that the Court had sustained a ban on a particular abortion procedure, and it set the stage for further incremental challenges to the Court's jurisprudence, such as laws protecting pain-capable unborn children that have been recently enacted across the country.

After Bush left office, over the last four years, two pro-Roe justices stepped down. But the opportunity to overturn Roe was lost because we had elected Barack Obama, who replaced those justices with two more pro-Roe justices.

Here is the historical bottom line: The elections of Ronald Reagan, George H.W. Bush and George W. Bush affected the Supreme Court in ways that have saved many lives from abortion -- and contributed to the future reversal of Roe v. Wade. The elections of Bill Clinton and Barack Obama did the opposite. Reagan and the two Bushes were pro-life and favored judges who are faithful to the Constitution; Clinton and Obama support Roe and unlimited abortion and favor judges inclined to substitute personal (always pro-abortion) policy preferences in place of the law, the same philosophy that gave us Roe in the first place.

Now to the 2012 presidential election. Mitt Romney, unlike Obama, is pro-life, opposes Roe v. Wade, and pledges to choose judges who "adhere to the Constitution and the laws as they are written, not as they want them to be written." The Court is still tipped 5-4 in favor of Roe. A single nomination to the Court by a President Romney could make all the difference; more selections by Obama could cement Roe for another generation.

What would overturning Roe mean? It would mean that the Court is no longer imposing a nationwide policy of abortion on demand. It would mean that states are free to democratically determine their own abortion policies -- there would be a more serious public abortion debate. Some states would retain pro-abortion laws, but many would very significantly limit or even ban elective abortion. Overturning Roe would save the lives of millions of unborn children.

But more than Roe hangs in the balance. A second Obama term could turn the Court against modest pro-life laws that the Court has previously upheld, in decisions like Casey and Gonzales. Obama's two appointees so far would likely vote to strike down partial-birth abortion bans, for example; an additional nomination could put that position in the majority. Obama himself embraces such a radically expansive interpretation of the (fictional) constitutional right to abortion that he thinks the Court should strike down legal protection for born-alive abortion survivors.

Moreover, as Michael Fragoso notes, a president's nominations to other federal courts also affect abortion policy:

At the end of July, [George W. Bush-appointed] Judge Gruender (again) upheld South Dakota's informed-consent law. ... Earlier this year [Reagan-appointed] Judges Jones and Smith thwarted Planned Parenthood's efforts to use the courts to perform an end-run around Texas's popular sonogram law. In 2009, [George H.W. Bush-appointed] Judge Niemeyer upheld Virginia's partial-birth abortion ban en banc.

Given the Supreme Court's 2007 Carhart decision, the presence of conservative judges on the circuits will be crucial to advancing effective incremental pro-life legislation. These incremental changes are proven to be effective and are proliferating at the state level.

So why does the Supreme Court matter in this presidential election? Because the reversal of Roe v. Wade is at stake. Because pro-life laws are at stake. And because, above all, human lives are at stake.

Obamacare, abortion, and judicial activism

Last week the U.S. Supreme Court heard oral arguments over the constitutionality of the 2010 Patient Protection and Affordable Care Act (a.k.a. Obamacare). The Court will likely issue its ruling in June.

The primary question under dispute is whether Congress has the power under the Constitution to compel every private citizen to purchase a particular commercial product (health insurance) -- an unprecedented move made by Pres. Barack Obama's health care law. Defenders of Obamacare claim that Congress does have this power, so the Court should not strike down the legislation as unconstitutional.

Yet many of these Obamacare defenders -- including Obama himself -- think the Court was right to strike down all of the democratically-decided state laws on abortion in Roe v. Wade and to reaffirm that position in subsequent rulings. They think that state legislatures do not have the power under the Constitution to prohibit or even significantly limit elective abortion.

Look at these two cases. To say that state abortion bans are constitutionally impermissible is absurd. There is simply no support for a right to abortion on demand in the text or history of the Constitution. Indeed, states were banning abortion at the same time (the latter half of the 19th century) they were approving the very constitutional provisions the Court later said precluded bans on abortion!

On the other hand, to say that Obamacare violates the Constitution seems quite plausible. The Constitution limits Congress (as opposed to state legislatures, which are afforded much greater freedom under the Tenth Amendment) to certain enumerated powers, which on the face of them do not include the power exerted under the Obama health care law. Obamacare is an unprecedented assertion of federal government control.

Speaking recently about the possibility of the Court striking down his signature accomplishment, Obama urged "judicial restraint" and said that the Court should not "[overturn] a law that was passed by a strong majority of a democratically elected Congress." (Obama later clarified that he does not deny the Court's power of judicial review.)

Now look at another case. In Gonzales v. Carhart the Court upheld (i.e., did not overturn) the democratically-decided federal law prohibiting partial-birth abortion. Obama fiercely condemned the ruling (and he has called partial-birth abortion a "legitimate medical procedure"). Yet the partial-birth abortion ban passed with large bipartisan majorities and broad public support; Obamacare passed (contrary to the president's claim) by a tiny margin on a purely partisan vote against broad public opposition, leading to huge losses by the president's party in that fall's elections.

Obama claimed that overturning Obamacare would be "judicial activism," saying: "I'd just remind conservative commentators that for years what we've heard is the biggest problem on the bench is judicial activism or a lack of judicial restraint -- that an unelected group of people would somehow overturn a duly constituted and passed law. Well, here's a good example."

No, that's not what judicial activism is -- it is not the same as judicial review. Properly understood, judicial activism is the substitution of personal policy opinion for the Constitution. It is making law rather than faithfully interpreting and applying it. As the Wall Street Journal explains:

Judicial activism is not something that happens every time the Supreme Court overturns a statute. The Justices owe deference to Congress and the executive, but only to the extent that the political branches stay within the boundaries of the Constitution. Improper activism is when the Court itself strays beyond the founding document to find new rights or enhance its own authority without proper constitutional grounding.

Judicial activism is the philosophy that seems to characterize the president's various judicial opinions. Obama wants the Court to strike down constitutional laws (e.g., any conceivable limits on abortion) and uphold unconstitutional ones (Obamacare). He favors partial-birth abortion, so he wants Court-mandated partial-birth abortion on demand. He favors unprecedented federal government control over health care, so he wants the Court to allow it.

In a 2001 interview, Obama advocated "break[ing] free from the essential constraints that were placed by the Founding Fathers in the Constitution." Not via the American people deciding to amend the Constitution -- which is how our Republic's governing document may be legitimately changed -- but by a handful of unelected judges deciding to impose their own, more "enlightened" vision in place of the Constitution, without the consent of the governed.

That is the radical Obama approach. It's part of what is at stake in November.

Assessing Pres. Obama's statement on the anniversary of Roe v. Wade

President Barack Obama issued an official statement on the Jan. 22 anniversary of Roe v. Wade, the 1973 U.S. Supreme Court ruling that (together with companion ruling Doe v. Bolton) struck down the democratically-decided abortion laws of every state and imposed on the entire nation a policy of legal abortion for virtually any reason throughout all of pregnancy. Applauding the decision, Obama emphasized his commitment to "a woman's right to choose" and said abortion is a "fundamental constitutional right."

Women at the 2012 MCCL March for Life,
disagreeing with Pres. Obama

It is revealing that Obama so staunchly supports Roe, a constitutionally indefensible ruling that even legal scholars who support legal abortion (including Obama friend, adviser and member of the administration Cass Sunstein) think was badly decided. As Timothy Carney notes in the Washington Examiner, Obama "either shows a strikingly poor understanding of constitutional law (especially for a Harvard Law grad), or he buys into the dishonesty that pervades the opinion and its defenses." Law professor and legal-abortion advocate Kermit Roosevelt put it well in a 2003 Washington Post column:

You will be hard-pressed to find a constitutional law professor, even among those who support the idea of constitutional protection for the right to choose, who will embrace the [Roe] opinion itself rather than the result.

This is not surprising. As constitutional argument, Roe is barely coherent. The court pulled its fundamental right to choose more or less from the constitutional ether.

In any case, let's consider two claims Obama offers in his short Roe statement, both of which are typical of pro-choice rhetoric. The first is this:

As we mark the 39th anniversary of Roe v. Wade, we must remember that this Supreme Court decision not only protects a woman's health and reproductive freedom, but also affirms a broader principle: that government should not intrude on private family matters.

He uses three key phrases here: "women's health," "reproductive freedom," and "government should not intrude on private family matters." Let me briefly take them one at a time.

First, Roe wasn't about women's health -- it was about legalizing elective abortion. (Laws before Roe allowed abortion to save the life of the mother.) That is what Obama supports. That is the issue in dispute.

Second, "reproductive freedom" is a vague term, but in this case Obama means the freedom to have an abortion, which, as a plain factual matter, is the killing of a member of the species Homo sapiens at the fetal stage of development. Of course, Obama agrees that "freedom" doesn't justify legalizing acts that assault the dignity and rights of other persons, such as intentionally drowning one's toddler in the bath tub. (Obama also opposes "freedom" -- to at least some degree -- with regard to a wide range of issues, including economics, health care, gun ownership, and so on.) The issue, then, is obviously not freedom, but rather whether abortion is or is not the kind of act, like drowning a toddler, that should not be permitted. And this depends, in turn, on whether the being dismembered and killed by abortion counts as someone deserving of respect and protection, as human beings at later developmental stages do. On that matter -- that is, the matter of whether his position on abortion is correct or not -- Obama has exactly nothing to say.

Third, to say that "government should not intrude on private family matters" is likewise to beg the question as to whether elective abortion is really a "private family matter" or is instead a fundamental human rights violation, like when a man abuses his wife or strangles his child in the privacy of his own home, both practices that are wrong and should not be permitted.

So Obama has not offered any reason to think that abortion is morally permissible and ought to be legal (much less subsidized by taxpayers and exported to developing nations, as Obama advocates). To my knowledge he never has.

The second claim is this:

And as we remember this historic anniversary, we must also continue our efforts to ensure that our daughters have the same rights, freedoms, and opportunities as our sons to fulfill their dreams.

The freedom to have an abortion, then, is necessary for women to have "the same rights, freedoms, and opportunities" as men. It is true that, as a fact of biology, only women can become pregnant, and so the "burden" of not killing human beings in utero falls disproportionately on them. It is also true that the burden of not killing five-year-old children falls disproportionately on parents who have five-year-old children, so we might say that such parents do not have the same freedoms and opportunities as non-parents. But we would not then legalize the killing of five-year-old children, whose own "rights, freedoms, and opportunities," indeed very lives, are at stake.

Everyone is equally morally prohibited from killing innocent persons. This prohibition is not gender-specific. The question at hand is whether it includes the killing of the unborn. Pro-life advocates point to the scientific facts of human embryology and fetal development, which show that the unborn is a living member of our species, a human being, and then argue that all human beings, irrespective not only of gender, race, class, religion and ethnicity, but also of age, size, ability, dependency and cognitive function, ought to be treated with basic moral respect and protected by law.

Some thoughtful pro-choice advocates have engaged and responded to that case, and/or have seriously argued for the moral permissibility and legality of abortion. Most pro-choice activists have not, relying instead on intellectually superficial rhetoric. Pres. Obama is firmly in the latter category.

'The unbearable wrongness of Roe'

Michael Stokes Paulsen, a law professor at the University of St. Thomas here in Minnesota, wrote recently for Public Discourse about Roe v. Wade and its consequences.

After nearly four decades, Roe's human death toll stands at nearly sixty million human lives, a total exceeding the Nazi Holocaust, Stalin's purges, Pol Pot's killing fields, and the Rwandan genocide combined. Over the past forty years, one-sixth of the American population has been killed by abortion. One in four African-Americans is killed before birth. Abortion is the leading cause of (unnatural) death in America.

It is almost too much to contemplate: the prospect that we are living in the midst of, and accepting (to various degrees) one of the greatest human holocausts in history. And so we don't contemplate it. Instead, we look for ways to deny this grim reality, minimize it, or explain away our complacency—or complicity.

Paulsen discusses what Roe held, why constitutionally it was an "utterly indefensible" decision, and how morally its results are simply catastrophic. Below are some notable excerpts.

On what Roe actually did:

The right created by the Supreme Court in Roe is a constitutional right of some human beings to kill other human beings. I do not mean for my description to be provocative, but simply direct—blunt about facts. One need not presume that the human fetus has a right not to be killed in order to recognize that, as a descriptive matter, Roe creates a right for one class of human beings to kill other human beings.

On the constitutional basis for Roe:

If the U.S. Constitution actually protected such an extreme personal legal right to kill the human fetus, that would be troubling enough, but the trouble would be with the content of the Constitution. The further problem with Roe is that it has absolutely no basis in the text, structure, or history of the Constitution. No rule or principle of law fairly traceable to the text, discernible from its structure, or fairly derived from evidence of intention or historical understanding of an authoritative decision of the people, remotely supports the result reached in Roe. In terms of fair principles of constitutional interpretation, Roe is perhaps the least defensible major constitutional decision in the Supreme Court's history.

Roe's reasoning, distilled to its essentials, is that the Constitution creates a "privacy" right to abortion, on the premise that the right not "to bear" a child is protected by the Fourteenth Amendment's Due Process Clause. No serious constitutional law scholar thinks this is a plausible reading of the Due Process Clause. That clause forbids government to "deprive any person of life, liberty or property, without due process of law." Without due process of law are crucial words. The Due Process Clause does not say that government never may deprive a person of life, liberty or property. It only says that government may not do so "without due process of law"—that is, arbitrarily, lawlessly, not in conformity with duly enacted laws and accepted procedures for their application. [PS note: The government rightly deprives people of the "liberty" to murder, rape and steal.]

On Planned Parenthood v. Casey (1992), which reaffirmed the constitutional right to abortion invented in Roe:

If Roe was radical, Casey was craven. A majority of the Supreme Court apparently believed that Roe was wrongly decided, fully understood the moral and human consequences of the decision, and deliberately adhered to it anyway. Stare decisis has never been thought required by the Constitution, before or since. Brown v. Board of Education (1954) famously repudiated Plessy v. Ferguson (1896) on the question of whether racial segregation was consistent with "equal protection of the laws." The Court has overruled scores of its own precedents. Indeed, it overruled two cases in Casey. Casey's reaffirmation of Roe, in the name of stare decisis, was a sham—perhaps the most transparently dishonest major judicial decision since Dred Scott.

On what makes Roe unbearable:

Roe is a radical decision and a legally indefensible one. But what really makes Roe unbearably wrong is its consequences. The result of Roe and Doe has been the legally authorized killing of nearly sixty million Americans since 1973. Roe v. Wade authorized unrestricted private violence against human life on an almost unimaginable scale, and did so, falsely, in the name of the Constitution.

Our our response:

Here is the problem, undressed: If human embryonic life is morally worthy of protection, we have permitted sixty million murders under our watch. Faced with this prospect, many of us—maybe even most—flee from the facts. We deny that the living human embryo is "truly" or "fully" human life, adopt a view that whether the embryo or fetus is human "depends," or can be judged in degrees, on a sliding scale over the course of pregnancy; or we proclaim uncertainty about the facts of human biology; or we proclaim moral agnosticism about the propriety of "imposing our views on others"; or we throw up our hands and give up because moral opposition to an entrenched, pervasive social practice is not worth the effort, discomfort, and social costs. The one position not on the table—the one possibility too hard to look at—is that abortion is a grave moral wrong on a par with the greatest human moral atrocities of all time and that we passively, almost willingly, accept it as such.

Read the whole piece.

Roe v. Wade: Absurd, deadly, catastrophic

In Roe v. Wade the U.S. Supreme Court ruled that the right to liberty protected by the Fourteenth Amendment of the Constitution includes an unstated "right to privacy" that is in turn "broad enough to encompass" a right to abortion (which is also never mentioned in the Constitution) and this entails that states are constitutionally required to permit abortion on demand. Got it?

There was no reason to think the Constitution contains a right to abortion, and every reason to think it doesn't. Most obviously damning are all the state abortion bans enacted in the latter half of the 19th century, about the same time the Fourteenth Amendment was put into place. As Justice William Rehnquist wrote in his Roe dissent, "To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment."

Absurd? Completely.

The consequence of Roe (and its companion decision, Doe v. Bolton) was a Court-mandated, nationwide policy of abortion on demand at virtually any stage of pregnancy. Thirty-nine years later, this policy has resulted in the legal and deliberate killing of some 53 million unborn human beings. That's 53,000,000 innocent members of the human family.

Abortion, under the Roe policy, is the leading cause of human death. The number of Americans killed because of Roe dwarfs the number of American casualties from every war in our history combined. More Americans die from abortion each day than died on that horrific day in September of 2001.

But those comparisons can be misleading. Abortion isn't death in the service of national defense, freedom and justice, or death as a result of natural causes, like heart disease (as tragic as those deaths are). Abortion is intentional killing for the convenience or supposed benefit of others; it is the elimination of those very young, defenseless and voiceless human beings who get in the way of what we want. Abortion, in other words, is precisely the kind of injustice that our soldiers have fought and died to defeat.

Tomorrow, Jan. 22, is the 39th anniversary of the Roe v. Wade decision legalizing abortion on demand nationwide. At 2 p.m. we will hold the annual MCCL March for Life at the state capitol in St. Paul. We will commemorate the lives lost and women hurt. We will call for legal protection for unborn children and introduce MCCL's pro-life legislative agenda for the upcoming session. If you live in Minnesota, please join us.

• Understanding Roe v. Wade and Doe v. Bolton

• Why Roe was wrong

• Abortion defenders explain why Roe was a terrible legal decision

Understanding Planned Parenthood v. Casey: A landmark abortion decision

In 1992 the biggest abortion-related case since Roe v. Wade came before the U.S. Supreme Court. In Planned Parenthood v. Casey, the Court was asked to consider the constitutionality of five provisions of Pennsylvania's Abortion Control Act. They are as follows:

1. A woman seeking an abortion must give her informed consent before the procedure and be provided with certain information (e.g., information about the health risks of abortion) at least 24 hours before the abortion is performed.

2. The informed consent of one parent must be obtained before a minor undergoes an abortion, but a judicial bypass procedure is available.

3. A married woman seeking an abortion must sign a statement indicating that she has notified her husband, unless certain exceptions apply (e.g., spousal abuse).

4. A "medical emergency" will excuse compliance with the other provisions.

5. Abortion-providing facilities must abide by certain reporting requirements.

The decision

The Court upheld four of the five provisions, rejecting only the third requirement based on an "undue burden" standard (explained below). It also decided that the "essential holding of Roe v. Wade should be retained and once again reaffirmed." That "essential holding" is that a woman has a right to abortion before the point of fetal viability, and that abortion may be restricted after viability, but only if there are maternal life and "health" exceptions.

The plurality opinion was written by Justices Anthony Kennedy, Sandra Day O'Connor and David Souter. Kennedy, O'Connor, Souter, Harry Blackmun and John Paul Stevens formed the majority of five that decided to uphold Roe. Dissenting justices William Rehnquist, Byron White, Antonin Scalia and Clarence Thomas believed that Roe should have been overturned.

Modifications to Roe

Despite upholding the "essential holding" of Roe, the Court in Casey made three major modifications to its abortion jurisprudence.

The history of abortion in the United States

This week, National Right to Life's "Pro-Life Perspective" radio broadcast is launching a series examining the history of abortion in the United States beginning shortly before the 1973 Roe v. Wade decision. You can listen to the series here.

For a broader look at abortion history -- including abortion in 18th and 19th century America -- see Dispelling the Myths of Abortion History by Joseph W. Dellapenna, Abortion Rites: A Social History of Abortion in America by Marvin Olasky, and The Physicians' Crusade Against Abortion by Frederick N. Dyer.