Late Edition: Eroding Roe

Nothing strikes greater fear into the liberal breast than the delicacy of having to explain what, or more precisely who, is killed during an abortion. In his Roe v. Wade opinion, Justice Harry Blackmun took one look at the problem and realized that it had to be avoided at all costs. “We need not,” he declaimed, “resolve the question of when life begins.”

Oh? One would have thought that was the heart of the matter. Blackmun’s evasion succeeded only because no higher forum could challenge his disingenuousness. The Supreme Court has sustained his ruse for three decades, even unto declaring that a partially delivered and palpably human child is beneath judicial notice. The abortion lobby, in turn, converted this evasion into a slogan: the “right to choose.”

The slogan’s power consists precisely in its capacity to invoke an idea while simultaneously avoiding the thrust of its argument. Lacking a direct object, the open-ended infinitive permits people to support abortion without having to contemplate its grisly consequences or the reasoning that justifies it. When the object is supplied, the barbarity the slogan was designed to obscure becomes instantly apparent.

But even the cleverest slogan cannot withstand the onslaught of inconvenient facts. The pretense that abortion concerns only the putative rights of a pregnant woman cannot withstand two minutes of serious scrutiny. The tangible reality of the child in the womb speaks with an eloquence that no slogan, and no judicial decree, can permanently silence.

That is why, despite its popularity among social and intellectual elites, abortion has never acquired secure purchase on the hearts and minds of the public at large. Indeed, recent polling data confirm a notable downward trend in support for abortion. Congress, the most accurate barometer of public sentiment, has yet to cast a significant vote in favor of abortion. To the contrary, it has voted with persistent regularity to restrict abortion to the extent the courts will allow.

Liberals screech every year about statutory prohibitions for abortion, but every year Congress enacts them. Two years ago Amherst professor Hadley Arkes, that indefatigable defender of the unborn, drafted and persuaded Congress and the president to enact the Born-Alive Infants Protection Act. By the simple device of declaring in law that a child who survives an abortion is entitled to protection, the act reintroduces the central issue that the Supreme Court for 31 years has refused to acknowledge. How is it, one is now bound to ask, that a child who must be legally protected at point X may nevertheless be killed with impunity two minutes before?

That question, whose moral predicates are now planted in a federal statute, exposes the intellectual legerdemain on which Roe rests. Merely to raise it is to see at once why invocations of a pregnant woman’s autonomy cannot resolve the abortion dilemma. It is to see, in short, why the house of Roe is built on sand.

And recently, Congress and the president hammered another nail into Roe‘s coffin by approving the Unborn Victims of Violence Act, which affirms that an assault against a pregnant woman consists of two offenses—one for harming the woman, another for harming her unborn child. The abortion lobby, as usual, went berserk, and Congress, as usual, did the right thing. Roe to the contrary notwithstanding, two separate statutes now attest that unborn children have legally cognizable rights. We do not know how these statutes will play out in practice, but their very existence undermines the core premise of the abortion cases.

These new laws are but harbingers of similar legislation to come. Slowly but surely, the logic of Roe v. Wade is unraveling. Roe is certainly an appalling decision; but, more to the point, in failing to address the moral and legal status of the unborn child, it planted the seed of its own destruction. Roe will not, however, fall of its own weight. The political branches will have to push and push until the Supreme Court asks the questions it has labored so mightily for so long to avoid: Who is killed during an abortion, and when, precisely, does she acquire her own rights to autonomy?

Those questions will be buried once again if Democrats take control of Congress or if John Kerry is elected president. Catholics especially need to remember that when they cast their ballots in November.

Michael M. Uhlmann

By

Michael Martin Uhlmann (1939-2019) served as professor of government in the department of politics and policy at Claremont Graduate University and Claremont McKenna College. Prior to teaching at Claremont, Dr. Uhlmann was a senior fellow at the Ethics and Public Policy Center, Vice President for Public Policy Research at the Bradley Foundation in Milwaukee, Wisconsin, and taught at the George Mason University Law School.

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