On December 1, 2021, the United States Supreme Court heard oral argument in the Dobbs case, a case that offers an opportunity to reconsider the basis for legalizing abortion. Since Roe (1973), over 62 million have been lost (and over 2,000 continue to be lost every day). Our nation is at a crossroads.
A year ago, Professor Michael Pakaluk published an article titled Abortion is the knot. He concluded that “legal abortion is the main evil that plagues our country, and others depend on it”. He is right. Legal abortion undermines everything: science, medicine, law, politics, education, marriage, family, community, business, logic, civility, peace, public health, consistency and more.
This is not the first time that we have faced an evil imposed by an erroneous Supreme Court ruling. The Supreme Court rationalized slavery in Dred Scott (1857) and segregation in Plessy (1896). These evils persisted for decades before being abolished.
We now consider whether all have certain inalienable rights from the moment of conception. How will the Supreme Court react?
The 14th Amendment
During the argument at Dobbs, vital considerations reverberated in the chamber: liberty, autonomy, liberty, choice, trust, precedent / stare decisis, refuge, undue burden, substantial due process, opportunity, life. In addition to the briefs submitted by the parties, the judges received more than 140 amicus briefs. Among these, one stood out – a dissertation written by Professors Robert George and John Finnis. They address the final question – whether the 14th Amendment applies to unborn human beings.
In 1973, Sarah Weddington, the abortion lawyer, was questioned during oral argument as to what would happen if the court recognized 14th Amendment protection for the unborn child. She replied, âI would have a very difficult case. The judge who asked the question forcefully continued, “You sure would. This is the decisive question, as the majority opinion later noted in Roe:
If this personality suggestion is established, the [case for a constitutional right to abortion], of course, collapses, because the right to life of the fetus would then be specifically guaranteed by the [Fourteenth] Amendment.
The court sidestepped the question, saying there was uncertainty about the start of life. Was it true then or now?
Judge Harry Blackmun, the author of the majority opinion in Roe, served as counsel for the Mayo Clinic before being appointed to the Supreme Court. Judge Blackmun spent time at the Mayo Clinic writing Roe’s opinion. A few years before Roe, the Mayo Clinic hired Dr. Hymie Gordon, an authority in the then new field of genetics.
During Senate hearings a few years after Roe, Dr. Gordon testified as follows:
By all criteria of modern molecular biology, life is present from conception. … Science has a very simple conception of man; as soon as he is conceived, a man is a man.
Dr Micheline M. Mathews-Roth, Harvard Medical School, noted:
It is scientifically correct to say that an individual human life begins at conception.
The “father of modern genetics”, Dr JÃ©rÃ´me Lejeune explained:
Accepting the fact that after fertilization a new human being is born is no longer a matter of taste or opinion … it is simple experimental proof. Each individual has a very neat start to conception.
Dr Eugene Diamond, a member of the Center for Bioethics & Human Dignity, put it this way:
… either the judges were fed a backcountry biology, or they pretended to ignore scientific certainty.
And yet, 50 years later, this conundrum persists, as Judge Sonya Sotomayor illustrated during oral argument in Dobbs:
The question of the beginning of life has been hotly debated by philosophers since the dawn of time. It is still debated in religions. So when you say it’s the only right that takes away from the state the ability to protect a life, that’s a religious point of view, isn’t it?
Science tells a definitive story. Life begins at conception. From zero to everything. From this moment a new human being, who will never be repeated, exists.
The truth remains as recognized by the Court in 1973 – the abortion case “collapses” when the unborn child’s “personality” is honored, as it should be under the 14th Amendment.
When the leading medical proponent of abortion legalization, Dr. Bernard Nathanson, encountered an ultrasound, he literally came to see he had two patients and he transformed. He devoted the rest of his life to the two patients. As cancer took its toll, he called on author Terry Beatley to “teach the strategy of how I cheated on America.” His book, What if we got it wrong? Keep my promise to the American abortion king reveals the systematic deception that initiated and continues the legalization of abortion.
We are a greater nation to change course when we were wrong.
The Supreme Court case sanctioning segregation lasted 58 years. During argument at Dobbs, Judge Alito asked the retaining lawyer for Roe and Casey whether a precedent would have prevented the Court from overturning Plessy (1896) in 1897.
It is never too late (nor too early) to reverse an unfair decision.
A new start
The nation abolished slavery by the 13th Amendment and provided equal protection by the 14th Amendment. With the 15th Amendment, these measures rebuilt our Constitution.
The 14th Amendment, properly understood, ensures that we will never again fail to provide due process and equal protection to a class of human beings.
Supporters of abortion argue the opposite. They argue that the 14th Amendment is broad enough to include abortion as a “family planning” measure. They characterize the unborn child as âpotential lifeâ. But this is not true. She is a person with potential.
On December 8, 1854, the Church declared that by a singular act of grace, Mary the Mother of God, from the first moment of its existence, was “kept free from all stain of original sin.” This immaculate condition enabled him to house the Savior of the unborn world for nine months. The Church honors this reality every year from March 25 to December 25 (from the Annunciation to Christmas).
As we meditate in prayer on the first moment of the existence of the Blessed Mother on the occasion of the feast of the Immaculate Conception, may we resolutely defend the founding principles of our nation.
May the Blessed Mother, as patroness of the United States under her title the Immaculate Conception, guide us along our way.
And that all those who suffer from abortion start again the abortion case collapses.
Michael O. Kenney is President of the Pro-Life Partners Foundation and Senior Fellow of The Cardinal Newman Society.