Roe v. Wade on the ‘ash heap’ of history?

I can tell you precisely where I was when I heard the news of the leaked draft opinion by

Pro-life and pro-choice demonstrators gather in front of the U.S. Supreme Court in Washington, D.C., on May 3, 2022. | BRENDAN SMIALOWSKI/AFP via Getty Images

Justice Alito overturning Roe v. Wade as unconstitutional. I was driving home to Nashville after having gone to Charlotte to attend Southern Evangelical Seminary’s graduation ceremonies.

I immediately pulled off the road at a rest stop and gave thanks to my Heavenly Father for granting pro-lifers this apparent victory. I had been working toward this day since January 20, 1973, when Roe was first decided, striking down virtually every law limiting abortion in all 50 states. The sweeping and unprecedented decision took the contentious issue of abortion out of the political arena, thus making the issue far more divisive in American life than it would otherwise have been, as even the late Justice Ruth Bader Ginsburg acknowledged.

When I heard the news, conveyed to me over the phone by a Christian Post colleague, the image that immediately leaped to my mind was of young people marching in pro-life rallies, carrying placards that proclaimed, “WE SURVIVED ROE, ROE WON’T SURVIVE US!”

The first time I saw that particular placard was several years ago when I was participating in a protest against the opening of the largest abortion clinic in the world outside China. The clinic was in a seven-story building with the 7th floor reserved exclusively for late-term abortions (viable babies who would survive and flourish if they were placed in incubators instead of being killed).

This protest was particularly poignant for me since the hospital was in my boyhood hometown in Houston and was located adjacent to the neighborhood in which I grew up.

I was encouraged by these exuberant youngsters, confidently declaring their gratitude for having been born, and dedicating themselves to defeating the decision that had unleashed the culture of death on America.

As I visited with these young people in this and subsequent marches, I was impressed with just how aware these young people were and burdened by the fact that somewhere between 25% and 30% of the babies conceived the year they were born were killed before they could be born. They felt a moral obligation to speak up for those in their generational cohort who could not speak for themselves. 

The last week has provided an instructive tutorial on the present state of the “woke” left in America. When someone (probably a very liberal law clerk for a very liberal Supreme Court justice) leaked a draft of a Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, an explosion erupted.

We have no idea how much relationship there is between the leaked opinion draft (reportedly from early February) and any later drafts that may exist.

Since the leaked draft of the majority opinion, in this case, strikes down the infamous 1973 Roe v. Wade decision, the current thinking is that the perpetrator took this desperate action in a last-ditch attempt to rally public support and to intimidate at least one of the justices into changing his or her position. The leaked draft, like the oral arguments, indicates a 5-3-1 split on the decision with five justices (Alito, Barrett, Gorsuch, Kavanaugh and Thomas) in the affirmative, three dissenters (Breyer, Kagan and Sotomayor), and one justice trying to split the difference by declaring the Mississippi law constitutional, but declining to jettison Roe (Roberts).

And for the younger readers, let me remind everyone that it is not as if it hasn’t happened before. (cf. Justice Anthony Kennedy ultimately wrote the decision upholding abortion rights in Planned Parenthood v. Casey in 1992 after initially voting to overturn Roe.)

Of course, this kind of pressure on the court could backfire with Chief Justice Roberts potentially going over to Alito’s side to demonstrate that neither he, nor the Court, will be intimidated by threats of violence.

Threats of violence? Yes! Enough concern has been articulated that some might threaten physical violence to the justices or their families for affirming Alito’s draft, that Senators Cornyn (R) and Coons (D) have initiated federal legislation to provide federal protection for the justices. A group called “Ruth Sent Us” (referring to the late Justice Ruth Ginsburg) is planning to send protestors to the homes of six justices supporting overturning Roe and are paying people to go protest at the justices’ homes.

It should be said at this point, that everyone should read Justice Alito’s majority opinion for themselves. If they do so, and they are fair-minded, they will describe his 98-page draft as precise, a comprehensive legal presentation of why Roe v. Wade and its companion case Planned Parenthood v. Casey (1992) was unconstitutionally decided in the first place and justice demanded they both be overturned.

One of the arguments utilized by the defenders of Roe is the legal concept of stare decisis, that Roe was “settled law” and established precedent. Pro-lifers response to that is succinct. Plessy v. Ferguson (1896), enshrining racial segregation was not overturned until Brown v. Board of Education (1954), which was a span of 58 years. The span between Roe v. Wade (1973) and the overturning of Roe in the Alito decision is a mere 49 years.

It is foolish to seek to discern the truth with the mere passage of time, and it is never too late to do the right thing.

It is somewhat baffling to read the rhetoric of the “woke” left. Thursday’s USA Today stands as an example. Under the headline “Overturning Roe would be devastating to life” by Susette Hackney. My question to Ms. Hackney is simply this, “Whose life?” Abortion certainly devalues the unborn babies who are killed, approximately 60% of whom are estimated to be girl babies. Since these babies may statistically face more challenges in life than their fellow citizens who are predominantly born into two-parent families, Ms. Hackney would mitigate their potential suffering by killing them.

The pro-abortionists and their accomplices in the “woke” media proclaim that rescinding Roe would eliminate abortion in America. Unfortunately, it would not. It would just send the issue back to each state legislature. Currently, about half the states would enact or activate fairly restrictive laws. Very liberal states like California, Massachusetts, and New York would continue to enact extremely radical laws.

Radical! Yes, it is radical when you pass laws allowing the baby to be killed until it is fully born and separated from his or her mother, like the laws in New York and the one pending in California.

All rescinding Roe does is to return the issue to the people to decide, state by state. It is called democracy!

Most Americans do not agree with the reasons put forth for approximately 90% of the abortions occurring in America every year.

Let me close by making clear the kind of legislation I would be willing to support as an American citizen. My public policyposition is that the only valid reasons for an abortion are a direct threat to the mother’s continued physical life, pregnancies that result from rape reported in a timely manner, biological incest, and obvious medical fatal deformities in the unborn baby.*

These exceptions, taken together, would result in a reduction to about 1% of the abortions perpetrated each year in the United States. The ugly fact is that most of the abortions taking place in the U.S. every year are performed because at least one parent considers the child to be “too embarrassing, too expensive, too ill, or merely too inconvenient.”

May God help us!

*My personal moral position is that the only valid moral justification for taking a human life through abortion is to defend a human life (namely, the mother). I am not a pacifist, though I believe lethal violence is permissible to defend human life.

Dr. Richard Land, BA (Princeton, magna cum laude); D.Phil. (Oxford); Th.M (New Orleans Seminary). Dr. Land served as President of Southern Evangelical Seminary from July 2013 until July 2021. Upon his retirement, he was honored as President Emeritus and he continues to serve as an Adjunct Professor of Theology & Ethics. Dr. Land previously served as President of the Southern Baptist Convention's Ethics & Religious Liberty Commission (1988-2013) where he was also honored as President Emeritus upon his retirement. Dr. Land has also served as an Executive Editor and columnist for The Christian Post since 2011.

Dr. Land explores many timely and critical topics in his daily radio feature, “Bringing Every Thought Captive,” and in his weekly column for CP.

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