On abortion, the Supreme Court can no longer remain on the periphery

This year’s March takes place at a unique historic moment: seven months to the day after the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt struck down a Texas statute that would have held abortion facilities to the health and safety standards governing other ambulatory surgery centers. The case was brought by some of the abortionists who perform Texas’s 60,000 – 72,000 annual abortions. They disingenuously purported to defend women’s interests when, in reality, their “right” to operate profitable, cheaper centers was at stake.

What was particularly shocking about Whole Woman’s Health is that, unlike all other landmark abor
tion cases, the majority opinion included no language that noted any
interest in the life of the child in the womb. To see the Supreme Court address abortion without even giving lip service to the value of infant life was shocking. This is why the March for Life is as critically important today as it has ever been.

The March is a reminder of the crucial importance of care for both children and their mothers. Pro-life caregivers and advocates are second to none in providing critical pregnancy services, counseling, financial assistance and medical help to expectant mothers – recognizing that care for infants and the women carrying them go hand in hand. These services aid women and their children, recognizing that the welfare of both are inextricably intertwined and need not be placed in false opposition to each other.

Whole Woman’s Health divided women and children, reflecting an all-too-common perspective of the pro-abortion movement. It not only eliminated health and safety safeguards for women, but it so severed the interests of mother and child that children were not even mentioned.

In her concurring opinion in Whole Women’s Health, Justice Ginsbu
rg said, “As long as this Court adheres to Roe v. Wade and Planned Parenthood of Southeastern, Pa. v. Casey, Targeted Regulation of Abortion Providers laws … cannot survive judicial inspection.”

Ironically, there is some moral truth to this claim. Roe v. Wade embroiled the nation in a morass of judicial opinions and legislative enactments that try mightily to regulate the taking of life. Roe‘s discredited trimester theory is roundly critiqued as lacking medical integrity. ”
Viability” constantly takes on new meaning as medical progress saves ever-younger infants. Judicial pronouncements on partial birth abortion turn on which portions of a tiny body have been delivered from the womb, asking gruesome questions that generate vastly different outcomes based on mere fractions of an inch. Debates over legislation addressing fetal pain paradoxically aim to reduce the pain felt by abortion victims as they die while still denying that they have any right to live.

Opinions about regulating the abortion industry use constantly shifting standards such as “undue burden,” “substantial obstacle,” “reasonably related,” “legitimate state interest,” “deferential standard,””constitutionally acceptable objective,” and other vague tests. “Undue burden” analysis asks how far a woman must drive, how long she must wait, and how much she must be told before inconvenience turns to “undue burden.”

Whole Woman’s Health, like all its predecessors, will generate no clarity. Instead, reams of future litigation will arise in its wake. Justice Ginsburg puts her finger on the reason: Roe itself. Litigation presenting abortion laws for “judicial inspection” will necessarily continue
because, “as long as this Court adheres” to Roe, no other outcome is possible.

This is not because legislatures and courts are incapable of precise language, careful compromise, exhaustive analysis, and intricate frameworks. They are.

Yet, these efforts are doomed because the nation still “adheres to Roe.” Whether future decisions on abortion restrictions tighten or loosen access, they suffer from the same central flaw: They remain on the periphery. They discuss how, when, where and by whom abortions will continue, without demanding national reexamination of the morality of Roe itself.

They merely tinker around the edges of a national tragedy.

Over four decades of abortion litigation and legislation have not returned to the profound question at the heart of the matter: the dignity of the young life at stake. Whole Women’s Health evaded that issue even more than its precedents, by failing to even mention children themselves.

Justice Ginsburg’s remark unintentionally proclaims that while the intricacies of abortion restrictions generate much attention, they do not mask the need to take a deep, honest look at Roe itself. The March for Life is an invitation to take that painful look and recommit to defending the dignity that both children and
women deserve.

Lucia Silecchia is a professor of law at The Catholic University of America’s Columbus School of Law and frequently writes on elder law, environmental ethics, and legal education. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions.