Forty-five years ago today, the Supreme Court issued its landmark ruling in Roe v. Wade, declaring that the 14th Amendment of the Constitution provides a woman with the right to an abortion. At the time, public contention over abortion had only just begun to stew.
It was this latent controversy, simmering just below the surface of American public life and primed to explode, that led the Court to invent in Roe the right to abortion. The majority justices — seven in all, and led by opinion author Harry Blackmun — knew exactly what outcome they wanted before the case even began. They wished to resolve the issue quickly in the highest court, putting it to bed before it could spiral out of control in the court of public opinion.
They considered, then, not the text of the Constitution but rather how they could best justify what they viewed as a necessary pro-abortion decision to prevent a vicious public and legislative battle. This political motivation led them to provide a thin legal and constitutional basis for the amorphous right to abortion — a fact that has been acknowledged by scholars on both sides of the issue.
If, as Blackmun’s writings later revealed, their goal was to entrench abortion rights as publicly acceptable, the past 45 years have proven their grand strategy a complete failure. Almost half a century later, the abortion question has grown to take up immense space in public debate. While the percentage of Americans who say they support abortion rights has stayed largely the same since 1973, the percentage of those who describe themselves as “pro-life” has risen.
Today, rising numbers of Americans report that a candidate’s abortion views are highly important in determining their vote. Abortion-rights and pro-life groups alike spend millions annually to elect candidates who will push their preferred abortion legislation. Over the last decade, the Left has demanded not only the unlimited right to an abortion but also government funding and the participation of anti-abortion health-care providers.
And none of these issues shows any sign of impending resolution.
Because it improperly plucked the issue out of the democratic process, Roe embroiled the judicial system in an endless struggle to demarcate the nebulous lines of the fabricated right to an abortion. There has been little federal legislation on the issue since 1973 — mainly because Roe and subsequent cases have been judged to preclude most efforts to limit abortion rights.
As a result, states are left in the dark as to what restrictions are permissible under the ever-changing interpretations of abortion jurisprudence. Every piece of abortion legislation can be challenged in court by its opponents, and the constitutionality of each is determined by unelected judges rather than by the public.
It is easy to see why, under these circumstances, the controversy refuses to die out.
If Roe had been decided differently, perhaps the pro-choice Left would have won the ensuing battle for public opinion. As it was, the American people’s effort to debate abortion and determine related law was ended before it ever seriously began. Over the ensuing decades, far from embracing abortion as the status quo and moving on, Americans have grown more opposed to unlimited abortion rights.
Only 12 percent of Americans believe abortion should be available at any point in pregnancy, while 76 percent support limiting abortion to the first three months of pregnancy, or to cases involving rape, incest, or to save the life of the mother.
The most recent evidence is a comprehensive survey of Americans’ abortion views, tracked by Marist and the Knights of Columbus. A slight majority of respondents identified as pro-choice — and other recent polls indicate that about 70 percent of Americans support Roe — but over three-quarters of those surveyed also support significant abortion restrictions.
Only 12 percent of Americans believe abortion should be available at any point in pregnancy — the official position of the Democratic party — while 76 percent support limiting abortion to the first three months of pregnancy, or to cases involving rape, incest, or to save the life of the mother. That includes 70 percent of Millennials, who largely favor individual rights but tend to favor placing limitations on abortion rights.
Even more interesting, 60 percent of self-identified pro-choice Americans and 60 percent of Democrats support these abortion restrictions; only one in five Democrats said they favor abortion during any stage of pregnancy. (It is likely that even fewer support the right to an abortion during any stage and for any reason.)
A majority of respondents — along with significant minorities of Democrats and pro-choice respondents — support conscience protections for pro-life Americans. Almost 80 percent believe laws can protect both a mother’s health and her child’s life. In short, this poll illustrates an abundance of bipartisan support for limiting abortion and finding a middle ground on this issue, and across political lines Americans reject unlimited, government-funded abortion on demand.
There are surely many reasons for this growing consensus, not least of which is scientific progress. For all the Left’s insistence that it has a monopoly on science, technological advances have given the pro-life movement the tools with which to illustrate the facts of abortion, and Americans do not like what they see.
Perhaps unsurprisingly, studies show that women who see an ultrasound image of their unborn children are more likely not to choose abortion. This is surely why abortion-rights advocates so ferociously oppose laws requiring that women be notified of the option to have an ultrasound before choosing abortion.
The growing scientific evidence that fetuses have the capacity to feel pain has led to a rise in the number of Americans supporting late-term abortion restrictions such as stipulated in the Pain-Capable Unborn Child Protection Act. Marist reports that 63 percent of Americans support such a ban, an increase from last year and a figure that includes more than half of pro-choice Americans and Democrats.
Surgeons are now able to treat unborn children as human beings, and perinatal surgery is expanding rapidly as a medical field. Over the past two decades, one leading children’s hospital performed almost 1,600 fetal surgeries, often on unborn children as young as 16 weeks. If science allows doctors to treat the unborn as patients, it becomes much more difficult to use medical reasoning to justify killing them.
Technology bears the pro-life movement forward, pushing the age of viability earlier and earlier in pregnancy. On the horizon is the very real possibility of using artificial wombs to complete gestation outside a mother, a prospect that horrifies the pro-abortion Left. Scientific advancement has yet to provide greater justification for abortion. It continues to reveal, more and more over time, the gruesome facts of abortion by illustrating basic biological realities.
With every year that passes, it will become increasingly difficult for anyone to deny the truth about abortion and human life. It stares back at us from the human face in every sonogram. It reaches out to us from each image of an unborn child stretching from the womb to grasp the hand of a surgeon operating to save its life. It calls to us from NICU wards across the country, where tiny children born as early as 22 weeks fight for their lives and, with the help of modern medicine, survive.
Roe declared that these are not human persons, that they have only the right to die. Everyone should know in his or her heart that this is an egregious lie. In another 45 years, perhaps our law will acknowledge it, too.