{"id":258118,"date":"2021-11-30T16:37:19","date_gmt":"2021-11-30T22:37:19","guid":{"rendered":"https:\/\/www.liveaction.org\/news\/?p=258118"},"modified":"2021-11-30T13:43:37","modified_gmt":"2021-11-30T19:43:37","slug":"roe-written-overturned-day-arrived","status":"publish","type":"post","link":"https:\/\/archive.liveaction.org\/news\/roe-written-overturned-day-arrived\/","title":{"rendered":"Roe was written to be overturned. And that day has arrived."},"content":{"rendered":"
<\/div>

Disclaimer: The opinions expressed in this guest post are solely those of the author and are not necessarily reflective of Live Action or Live Action News.<\/i><\/p>\n

With the\u00a0<\/span>Dobbs v. Jackson Women\u2019s Health Organization<\/span><\/i> case before <\/span>the U.S. Supreme Court,<\/span>\u00a0our Nation faces the possible upending of the landmark decision <\/span>Roe v. Wade\u00a0<\/span><\/i>\u2014 the case that has dictated America\u2019s abortion laws for over 48 years. However, the justices in the majority made it clear that its temporary, provisional holding in <\/span>Roe<\/span><\/i> was never meant to be the final say on abortion.\u00a0<\/span><\/p>\n

As the Court later <\/span>explained<\/span><\/a> in <\/span>Planned Parenthood v. Casey<\/span><\/i>, the 1992 challenge to <\/span>Roe<\/span><\/i>, its decision was merely the Court\u2019s best attempt to encourage \u201cthe contending sides of a national controversy to end their national division\u201d based on the facts available in 1973.<\/span><\/p>\n

Consider the <\/span>sequence of events<\/span><\/a> that led to the Court\u2019s final<\/span> decision in <\/span>Roe<\/span><\/i>.\u00a0<\/span><\/p>\n

The first draft of the Court\u2019s opinion did not establish abortion rights; the second draft did but Justice Blackmun, <\/span>Roe<\/span><\/i>\u2019s author, held that those rights only exist in the first trimester even though he recognized that standard as \u201carbitrary\u201d and \u201cequally arbitrary\u201d to viability, which is when a fetus can first survive outside of his or her mother; but then, after Justice Powell suggested that viability would be more \u201cgenerally accepted,\u201d the final opinion crafted the Court\u2019s viability standard in holding that women have a constitutional right to abortion up until fetal viability<\/a>.<\/span><\/p>\n

Further, consider the <\/span>Roe<\/span><\/i> Court\u2019s discussion of outstanding questions and issues that needed to be resolved.<\/span><\/p>\n

First, the Court claimed that it could not permit states to ban abortion at fertilization since justices could not determine \u201cwhen life begins . . . at [that] point in the development of man\u2019s knowledge\u201d; this left open the possibility that if man\u2019s knowledge developed to prove that a human\u2019s life begins at fertilization (\u2018the fertilization view\u2019), then the Court could be confident that abortion entails the taking of a human\u2019s life and could hold that states have the Tenth Amendment right and Fourteenth Amendment duty to protect the preborn from abortion throughout pregnancy.<\/span><\/p>\n

Second, the Court found that \u201cthe law ha[d] been reluctant to endorse any theory that life . . . begins before live birth or to accord legal rights to the unborn\u201d; this left open the possibility that if states were to protect preborn humans in other legal contexts, then the Court could be confident that abortion bans are genuine protections of preborn humans instead of attempts to control women.<\/span><\/p>\n

The <\/span>Casey <\/span><\/i>Court enshrined this logic in its standard for overturning precedents: \u201cIn constitutional adjudication as elsewhere in life, changed circumstances may impose new obligations, and the thoughtful part of the Nation could accept each decision to overrule a prior case as a response to the Court’s constitutional duty.\u201d<\/span><\/p>\n

READ:\u00a0Legal scholars agree \u2018viability\u2019 doesn\u2019t determine humanity of preborn children<\/a><\/em><\/strong><\/p>\n

Legal scholars have published on these \u201cfact- and time-sensitive move[s]\u201d by the <\/span>Roe <\/span><\/i>Court. For instance, one scholar <\/span>argued<\/span><\/a> that the Court \u201cleft open the possibility that if a sufficient consensus about the beginning of human life emerged\u201d to prove the fertilization view, then Court\u2019s viability standard \u201cwould have to shift with this consensus to protect human life in the womb\u201d throughout pregnancy.\u00a0<\/span><\/p>\n

Thus, the <\/span>Roe<\/span><\/i> Court practically held that states could protect preborn humans from abortion if they prove that the preborn are humans and if they act consistently in providing the preborn equal legal protections in non-abortive contexts. And this makes sense: if the Court did not know whether abortion takes a human\u2019s life and states did not charge a man with homicide after he attacked a pregnant woman and caused the death of her preborn child, then why should states have been allowed to charge and convict a physician for performing a medical abortion on a consenting pregnant woman?<\/span><\/p>\n

Today, in <\/span>Dobbs<\/span><\/i>, <\/span>not a single <\/span>amicus <\/span><\/i>brief<\/span><\/a> filed in support of <\/span>Roe <\/span><\/i>disputed the science underlying the fertilization view. However, biologists from 15 countries filed an <\/span>amicus <\/span><\/i>brief in <\/span>Dobbs<\/span><\/i>, in support of neither party, that declared: \u201cThe fertilization view is widely recognized \u2014\u00a0<\/span>in the literature<\/span><\/a> and by <\/span>biologists<\/span><\/a>\u00a0\u2014 as the leading biological view on when a human\u2019s life begins.\u201d<\/span><\/p>\n

Today, the <\/span>United States Congress<\/span><\/a> and <\/span>29 states<\/span><\/a> have passed fetal homicide laws that protect preborn humans from non-abortive violence starting at fertilization. In fact, states protect the preborn in at least <\/span>eight legal contexts<\/span><\/a>.<\/span><\/p>\n

Finally, consider how the <\/span>Roe <\/span><\/i>Court ostensibly gave states a legal roadmap to overturn its precedent in <\/span>Roe<\/span><\/i> by declaring that fetal rights would outweigh the right to abort if the \u201csuggestion of personhood is established\u201d because the case for abortion rights \u201ccollapses, for the fetus’ right to life would then be guaranteed specifically by the [Fourteenth] Amendment.\u201d<\/span><\/p>\n

But what did the Court mean by \u201cpersonhood\u201d?\u00a0<\/span><\/p>\n

In the years following <\/span>Roe<\/span><\/i>, the Court revisited the issue in <\/span>subsequent cases<\/span><\/a> and Justices Blackmun, Brennan, and Marshall \u2014 who were all part of the majority in <\/span>Roe\u00a0<\/span><\/i>\u2014\u00a0<\/span>affirmed<\/span><\/a> that \u201cif there is not such a difference [between a fetus and a human], the permissibility of terminating the life of a fetus could scarcely be left to the will of the state legislatures\u201d since fetal rights would be guaranteed by the Fourteenth Amendment. This is because the amendment uses the language \u201cperson\u201d to refer to all living humans, as justices have <\/span>explained<\/span><\/a> that the amendment applies to all \u201cweak and helpless human beings.\u201d<\/span><\/p>\n

Some might use \u201cperson\u201d as a philosophical term that can be arbitrarily defined based on people\u2019s preferences, but it is a straightforward legal term. Its meaning is only debated by those who seek to deny a human the rights they deserve \u2014 such as in discussions on <\/span>abortion<\/span><\/a> and <\/span>end-of-life scenarios<\/span><\/a>\u00a0\u2014 or to recognize the rights of a non-human\u2014such as in discussions on <\/span>animal rights<\/span><\/a> or <\/span>corporate personhood<\/span><\/a>.<\/span><\/p>\n

The principle of equality necessitates that all humans, born and preborn, must be legally recognized as persons. As I outlined above, justices on both sides of the abortion issue agree that there can be no right to abortion if it entails the killing of a human since there can be no right to commit a homicide without an adequate legal justification. The core truth of the abortion debate is that \u2014 much like your right to throw a punch ends at the tip of my nose \u2014\u00a0<\/span>abortion rights end when a human\u2019s life begins<\/span><\/a>.<\/span><\/p>\n

The Court has waited 48 years for the evidence required to update its temporary, provisional holding with a decision reflective of that core truth. Since the <\/span>Dobbs<\/span><\/i> Court has a majority of dedicated constitutionalists, there is an overwhelming <\/span>scientific consensus<\/span><\/a> on when a human\u2019s life begins, and states protect the preborn in several legal contexts \u2014 it is clear that day has finally come.<\/span><\/p>\n

Steve Jacobs is the program director of Illinois Right to Life. He received his J.D. from the Northwestern University School of Law and his Ph.D. from the University of Chicago; his dissertation, \u201cBalancing Abortion Rights and Fetal Rights: A Mixed Methods Mediation of the U.S. Abortion Debate\u201d, focused on Americans\u2019 common ground in the national abortion controversy.<\/span><\/i><\/p>\n

\u201cLike\u201d Live Action News on Facebook<\/a>\u00a0for more pro-life news and commentary!<\/strong><\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

Disclaimer: The opinions expressed in this guest post are solely those of the author and are not necessarily reflective of Live Action or Live Action News. With the\u00a0Dobbs v. Jackson Women\u2019s Health Organization case before the U.S. Supreme Court,\u00a0our Nation faces the possible upending of the landmark decision Roe v. Wade\u00a0\u2014 the case that has […]<\/p>\n","protected":false},"author":852,"featured_media":258070,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"om_disable_all_campaigns":false},"categories":[15,7077],"tags":[10512,946,2827,6293,14455,3707,144,14456],"yoast_head":"\nRoe was written to be overturned. 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