Over the last 49 years, Roe v. Wade has planted myriad moral distortions into our body politic.
The landmark 1973 Supreme Court abortion decision, along with the 1992 case affirming it, Planned Parenthood v. Casey, both face the gravest challenge in a generation on Wednesday. In defending its 15-week ban, Mississippi has called on the current court to overturn those two decisions. In accepting the case, the court seems open to the move.
Amid the legal parsing, we should not lose sight of the distortions Roe wrought and Casey perpetuates. We must face them and the harm they have done.
First, in Roe and Casey, we see a distorted understanding of human life. The abortion debate hinges on the status of the unborn child. Legalized abortion either denies or diminishes that life. It denies that life by explaining away the child’s essentially human qualities while subserving the child’s survival to the “liberty” of the mother.
Not that liberty — women’s freedom, in particular — aren’t important rights and societal commitments. But we rightly place a premium on life. We rightly regulate to limit the exercise of some person’s freedom for the safety of others. Indeed, many pro-choicers would balk at placing liberty above life in COVID-19 regulations, seemingly unaware of the mortal inconsistency. That the Supreme Court made this distortion a constitutional right only exacerbates the injustice.
Second, our abortion precedents distort human worth. Both Roe and Casey permitted state protection of the unborn later in pregnancy, setting a line at or near viability. In doing so, the court made the capacity to live independently a definition of life worth protecting, even worth living. Regardless of intention, the viability line tells the disabled and the elderly that they are less than others.
Third, and related, Roe and Casey have distorted how we approach pregnancy loss. We struggle as families and as a society with rightly understanding miscarriage and stillbirth. By the court’s reasoning, the difference between abortion and these losses is the mother’s intent. Thus, we can mourn the mother’s lost opportunity for actively parenting a child. But how do we mourn the lost child him or herself? To do so would itself stand in tension with the right to abortion since it would make a moral claim against the protected “privacy” or “liberty” the court sees underlying the abortion right.
Fourth, with the abortion cases, we witness the distortion of popular government. Ruling requires moral deliberation about the principles and purposes of the law. Abortion law is no different. In the United States, “we the people” rule. Thus, we the people should be able to consider and make determinations about the unborn child’s status and the privacy or liberty claims of the pregnant woman. By claiming to settle the basic question of abortion, the court has effectively removed the public from meaningful deliberation or debate. Sadly, in doing so, the justices have lessened our republic by denying us the chance to persuade and compromise as moral beings exercising self-government.
Fifth, Roe and Casey have distorted federalism. These cases nationalized and homogenized abortion regulation. Before, for most of U.S. history, the issue played out in the states. Federalism, coupled with popular rule, permitted robust debate that recognized different states might come to different conclusions. It thus allowed for tailoring to distinct needs and left room for compromise. Ultimately, it gave leeway for the people as a whole to work toward a consensus on the intense and momentous moral questions abortion entails.
This legacy is one the court should take no pride in. It is a legacy the justices should take the current opportunity to reverse. On Wednesday, we should do more than consider the legal arguments before the court. Roe’s wreckage goes far and wide, in law and society. That wreckage deserves a reckoning.
Adam M. Carrington is an associate professor of politics at Hillsdale College.
