July 14, 2022

No, the End of Roe Does Not Mean an Era of Darkness

By: Rodney Rios

After the Supreme Court overturned Roe v. Wade, the progressive establishment went into hysterics claiming that this was the beginning of a return to some imagined horrible past and that the Court had behaved both radically and in a “reactionary” manner. It is evident that, with regards to abortion, any limitations or overturning of Roe v. Wade would be presented as an assault on “freedom” and that progressives would look for anything to discredit the entirety of the Court’s decision and the pro-life movement. Despite allegations to the contrary, the end of Roe v. Wade is not the beginning of some dark era for the United States. Instead, it is merely the end of the beginning for the pro-life movement, with many new challenges to come.

The progressives’ hysteria claims that the Court would now eliminate all actual rights based on privacy, such as protections for birth control, same-sex sexual relations, and same-sex marriage. Unfortunately, Justice Clarence Thomas’ concurring opinion in Dobbs v. Jackson Women’s Health gave some substance to these allegations. However, independently of the merits of substantive due process as a legal doctrine, the reality is that no other justice from the majority joined in the concurring opinion. Furthermore, the majority opinion, written by Justice Samuel Alito, took great pains several times to express that abortion is not like other issues. As Justice Alito wrote:

What sharply distinguishes the abortion right from the rights recognized in [right to privacy] cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion destroys what those decisions call “potential life” and what the law at issue in this case regards as the life of an “unborn human being.” […] None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. […] [B]y the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way.

Moreover, Justice Alito argues that “the exercise of privacy rights at issue in Griswold, Eisenstadt, Lawrence, and Obergefell does not destroy a ‘potential life,’ but an abortion has that effect.” As such, the majority made this differentiation between abortion and other privacy rights that are protected by the Constitution. As Alito explained, the debate over abortion is enlarged to include privacy rights because “[p]erhaps this is designed to stoke unfounded fear that our decision will imperil those other rights.”

The question is, why would the dissent, representing the pro-choice position, do this? The majority mentions that in the dissent, there is no attempt to deal with the fundamental moral issue at stake with the practice of abortion: Is there a human life involved with the fetus, and if there is, when does human life begin? These questions are generally avoided by pro-choicers simply because it enters the realm of morality. Trent Horn has explained that this tendency of avoidance is common among pro-abortion advocates. They seek to either dodge the question of when human life begins, pretend that the unborn are better off not being born, or deny that the fetus is human without considering the question of what makes a human person, well, human.

In the Court’s opinion, Justice Alito does a remarkable job of debunking the false history and lofty constitutional arguments that led to abortion being recognized as a positive right in our nation’s legal and constitutional tradition. The Court also did the essential work of returning the debate over abortion to what matters, is the embryo a human person or not? As Joe Heschmeyer has argued, the three most important points a pro-lifer can make are: “Number one, if the unborn is growing, it must be alive. Number two, if it has human parents, it must be human. Number three, living humans, or human beings like you and me, are valuable, aren’t they?” It is thus necessary and proper to have this moral debate in the political arena, which the Court has hampered for almost fifty years as a result of judicial activism. For these reasons, the return of abortion to state politics was imperative so that it could be debated by citizens and dealt with by the people’s elected representatives.

In the end, what is human life and when does it begin is the central question regarding abortion. The Court categorically clarified that genuine privacy rights—though some disagree—are not in the same category as abortion. As such, it is mostly fearmongering and red herrings to distract and avoid the debate over the value and inviolability of human life from conception to natural death, the reason why all these other issues are joined to the abortion debate. In short, there will be hard questions, discussions, and difficult conversations in the future. The pro-life movement must adapt to the new era and battle the pro-abortion position state by state. We must also strive to develop a society and culture of life where abortion is not only completely unnecessary but also unthinkable.