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In writing his majority opinion in Roe v. Wade in 1973, Associate Justice Harry Blackmun complained that neither he nor any of the experts in the field of medicine, philosophy, or theology knew when life began, and so he developed an extra-legal theory — a “right to privacy” — that permitted him and a majority of the Supreme Court to rule that abortion was constitutional. Wrote Blackmun:
We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, in this point in the development of man’s knowledge, is not in a position to speculate as to the answer.
How would Blackmun (who died in 1999) and his majority supporters rule if they knew then that 95 percent of 5,500 biologists — with specialties ranging from anatomy, biochemistry, cellular biology, genetics, and physiology — believe that “a human’s life begins at fertilization”?
What if they knew that of those biologists, even those who are “very pro-choice,” “very liberal,” and consider themselves to be “strong Democrats” believe life begins at conception?
That is the result of a study conducted by Ph.D. candidate Steven Andrew Jacobs in the Department of Comparative Human Development at the University of Chicago. Published in academic circles a year ago, it is now coming to light in what could well turn out to be a tipping point in the abortion controversy.
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What’s clear is that legal scholars such as Edward Whelan have long held that Blackmun’s majority opinion in Roe was “an unconstitutional act of aggression by the Court against the political branches and the American people.” Whelan, whose legal career included clerking for Supreme Court Justice Antonin Scalia and who now serves as president of the Ethics and Public Policy Center, compares Roe to the Dred Scott decision inflicted on the American Republic in 1857:
Roe is the Dred Scott of our age. Like few other Supreme Court cases in our nation’s history, Roe is not merely patently wrong but also fundamentally hostile to core precepts of American government and citizenship. Roe is a lawless power grab by the Supreme Court….
Roe imposes on all Americans a radical regime of unrestricted abortion for any reason all the way up to viability — and, under the predominant reading of sloppy language in Roe’s companion case, Doe v. Bolton, essentially unrestricted … in the period from viability until birth….
Roe disenfranchises the millions and millions of patriotic American citizens who believe that the self-evident truth proclaimed in the Declaration of Independence — that all men are created equal and are endowed by their Creator with an unalienable right to life — warrants significant government protection of the lives of unborn human beings.
That the issue is increasingly likely to be addressed and overturned by the Supreme Court in the near future has caused the New York Times to look at a “post-Roe” world. It concluded that eight states with “trigger” laws would ban abortion immediately, while at least 13 more would probably ban it shortly thereafter. Looking at a study conducted by researchers from Middlebury College, the Guttmacher Institute, and the Bixby Center for Global Reproductive Health, the Times concluded that America’s abortion rate “would be at least 13 percent lower … 140,000 fewer abortions a year.”
This conclusion was no cause for rejoicing by a long-time pro-life advocate, David French. A senior fellow at the National Review Institute, French asked, “Am I the only pro-lifer who is sobered rather than enthused by the idea that ending Roe would cut nationwide abortions by less than 13 percent?”
After looking carefully at the study, French concluded that abortion rates, already high in east and west coast states, would remain high, while those in southern and Midwestern states, already historically low, would be nearly unchanged. French wrote that abortion is not so much a legal problem as a cultural one: “These numbers highlight two central realities in the fight for life: cultural change precedes legal change, and cultural change is more potent than legal change.”
For example, says French, there were 202,000 fewer abortions in the United States in 2015 compared with 2006: “That’s a greater reduction in the United States in 2015 than the one projected [by the Times] … and it was accomplished while Roe remained intact.” Simply put, said French, “the pro-life movement is one of the most successful cultural movements in American history.”
Added French: “Win the culture, and you win the war, saving countless lives even before you can change a single law. Lose the culture, and not even a repealed Roe will end the terrible scourge of abortion in the United States.”
Image: Design Cells via iStock / Getty Images Plus
An Ivy League graduate and former investment advisor, Bob is a regular contributor to The New American, writing primarily on economics and politics. He can be reached at [email protected].
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