If you’ve attended the March for Life a few times, things can begin to feel the same year after year. The weather is usually bad, the media is usually absent, and Roe v. Wade is still, to this nation’s great shame, still the law of the land.
But this year — and we know this has been said in the past — things could be different. It seems that we have, for the first time since Roe, a conservative majority on the Supreme Court. With the confirmation of Brett Kavanaugh to replace Anthony Kennedy, who upheld most of Roe with his morally stunted, constitutionally illiterate, and legally vacant opinion in Planned Parenthood v. Casey, there’s a chance Roe could be overturned.
Defenders of Roe know it can’t be defended on its own merits. Pro-choice legal scholars have been saying as much for decades. “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible,” wrote Ed Lazarus, a clerk to Roe’s author, justice Harry Blackmun.
So instead, they deify stare decisis, the legal notion that precedent holds weight and ought to be given deference. They even argue that Roe is a “superprecedent,” because it was largely upheld in Casey.
It’s a bad argument in defense of a horrendous decision. But even if you granted that a contrived, sloppy, and obviously political ruling deserved respect because it’s been around for 46 years, that argument wouldn’t apply to Roe, because science has changed since 1973, undermining the basis of the ruling.
Blackmun wrote “We need not resolve the difficult question of when life begins.” That was probably dishonest dodge back then. But today, nobody can argue that life begins at birth, or in the second trimester. If there’s any debate remaining, it’s a very narrow one, and the consensus is that a person is a person at least by the time a pregnancy is detected.
In 2003, scientists mapped the human genome. We now have something of a unique chemical serial number for each human being, which reflects the commonality of all humans, but also the individuality of each person. We have come to accept that DNA makes us the creatures we are.
While we change over our lives, and while we change immensely in the womb, that unique identity that is our DNA is already determined when we are a single cell, not even implanted in our mother’s uterus. Even if the phrase “life begins at conception” might strike some scientists as imprecise (“conception is a process,” they will say,) science has made clearer that a single-celled person is the same person she will be when she is born, when she grows old, and when she dies. A person is a person.
This wasn’t a new discovery in 2003. Embryology texts have said for decades that the fertilized egg is a unique individual, who will grow into an infant over 9 months. But scientific advances have made it harder to deny.
Since Roe, the notion of “viability” has also changed. Blackmun was only willing to grant that a baby at 28 weeks gestation was viable outside the womb. These days, a baby born at 24 weeks will survive is cared for properly. Fifteen years after Roe, James Gill was born at 21 weeks and 5 days. Today he’s a 30-year-old man.
Sonogram quality and availability has also advanced mightily. Any mother can see with her own eyes how vile the lie is that her unborn child is merely a “clump of cells.” Meanwhile, prenatal testing has advanced, bringing with it more sex-selective abortions and ruthless elimination of babies diagnosed with disabilities. It’s much clearer today than it was in 1973 that abortion is a weapon of eugenics.
So when the court takes up a case challenging Roe, the justices should give it the respect it deserves: None.
