“What does all this mean now?” a college-educated, twenty-something Roanoker asked me recently.
He had brought up the US Supreme Court’s (SCOTUS) momentous June 24 decision to overturn a court case from 1973 known as Roe v. Wade.
As we are all aware from seeing social media and news feeds, that is a highly emotional, charged, and controversial issue for millions of Americans and it has touched off protests from coast to coast, many of which have been violent. This column is an attempt to bring more light and less heat to this emotional, legal, and ethical issue.
First, let’s discuss what Friday’s high court ruling does not do: despite much misinformation, hype, and frankly, hysteria, it does not ban abortions across the whole country. In a nutshell, the court’s ruling takes the issue away from the federal government in DC and returns the issue to the states and voters there. You could say, the ruling makes the federal government “agnostic” on the whole issue.
As a licensed history teacher since 1987, I suggest we all take a deep breath, stop watching Tik Tok videos of people screaming, stop letting the talking heads tell how what to think and feel, and instead calmly take a brief history refresher to give us some helpful context.
As Democrat Woodrow Wilson, the last Virginia-born president put it, “A nation which does not remember what it was yesterday, does not know what it is today, nor what it is trying to do. We are trying to do a futile thing if we do not know where we came from or what we have been about.”
When our nation was founded and the Constitution was written and ratified between 1787-1789, the original agreement was that most authority would be held by the individual 13 states and only a minimum of powers would go to the new central government the founders aimed to create. Frankly, since most Americans had just fought a war of independence from the tyranny of England (1775-1783), they had no desire to create a centralized US government that could become so strong, it too might some day become a tyranny.
In fact, in hopes of keeping power “close to home” in the states and keeping a powerful federal (aka national) government on a tight rein, the 10th Amendment to the Bill of Rights states:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Here’s the “plain talk” explanation: unless a power or right is spelled out in black and white and given to the federal government, or specifically taken from the states in the Constitution, that authority automatically rests with the state government and the people there.
If that sounds odd to your modern ears, it is because we have veered so far from that founding principle over the past generations. No wonder the 10th Amendment has been called “the most ignored amendment in the Constitution.”
This principle of keeping power in states and close to the people is called “states’ rights.” The system of dividing powers among local, state, and the federal governments is called “federalism.”
In addition to federalism, another way to avoid the USA from ever becoming a dictatorship was to divide the new government into three branches, each with its own powers and ability to “check” or control the other two. These structures of “separation of powers” and “checks and balances,” though imperfect, have helped us maintain basic freedoms for over 240 years.
Based on the principle of federalism, up until 1973 abortion and its regulation was exclusively a state issue. All fifty states had their own laws governing abortion, laws that the legislatures, courts, and governor of that state had come to a conclusion on. Of course, those legislatures, governors, and in some cases, judges, had been voted on by the residents of that state. As such, those laws largely reflected the beliefs and priorities of the voters of that state. So, up till 1973, more liberal states like New York had more liberal abortion laws, while more conservative states like West Virginia had more conservative laws.
The key points to understand here are: all fifty states had their own laws; those laws to varying degrees placed limits on abortion; and the lawmakers who wrote the legislation ultimately had to answer to the voters of their state come next Election Day.
Now, to focus on the actual Roe v. Wade case….
“Jane Roe” was an alias. Her real named Norma McCorvey, a 22-year-old unmarried Texas woman who wanted to get an abortion in Texas in 1969. (You can read more about her complicated life and role in the Roe v. Wade case here.) Henry Wade was the Dallas County District Attorney who represented Texas before the high court. Both McCorvey and Wade were white.
In Texas at that time, it was illegal to get an abortion unless the mother’s physical life was in danger, and McCorvey could not afford to travel to New York to get an abortion that was legal there. At that same time, a group originally named the National Association for the Repeal of Abortion Laws (NARAL) was looking for a case to appeal to the US Supreme Court in hopes of winning a precedent-setting legal battle that would make abortion legal and accessible everywhere. Finding McCorvey, NARAL took her case, appealed it up the legal chain all the way to DC, and on January 22, 1973, the US Supreme Court issued its now famous–or some would say infamous–Roe v. Wade ruling.
The Court ruled that the US Constitution guaranteed a right to abortion, despite the word “abortion” appearing nowhere in the text. They justified that by claiming the Constitution guarantees a right to privacy, although the word “privacy” is not in the text either.
In fact, the Court in 1973 and pro-abortion supporters since have used, curiously enough, a word from earth science to justify abortion: penumbra. As stated on this page about eclipses, “The penumbra is the lighter outer part of a shadow. The Moon’s penumbra causes partial solar eclipses, and the Earth’s penumbra is involved in penumbral lunar eclipses.”
Simply put, Roe proponents claimed there was a national right to abortion in the US Constitution, based on an arcane term from your ninth-grade earth science book.
If the connection between “abortion” and “penumbra” seems unclear to you, join the club. It was designed to be vague and unclear. Since the actual text of the Constitution never used the words “abortion” or “privacy,” those seven justices had to cook up a justification to make their ruling appear legitimate and “scientific.” In an eclipse, the penumbra is the lighter part of that shadow that keeps getting broader and broader, out into infinity, the further you get from earth or moon. So, the 1973 justices created a kind of metaphor. If you imagine the Constitution is a fixed item like the earth, then the penumbra is the vague, ever-widening shadow that comes from it, and thus they “shoe-horned” the “right to abortion” into that vast shadowland where it hung out until June 24.
The key result from Roe was, the US Supreme Court took the abortion issue away from the legislatures and governors of the fifty states — and thus the voters who put those people in office or could fire them–and put the power in their own hands, those of nine judges.
(For a deep dive case summary, read this.)
A key result was, states could not restrict abortion during the first trimester of pregnancy. However, SCOTUS issued a related ruling that same fateful January day, Doe v. Bolton. That ruling is far over-shadowed by Roe, but it too was consequential. Up until 1973, states allowed abortions if doctors ruled one necessary to save the life of the mother, but Doe took that much further and said a woman had a right to an abortion in order to protect her “health.” However, SCOTUS defined the “health” factor as: “medical judgment may be exercised in the light of all factors–physical, emotional, psychological, familial, and the woman’s age–relevant to the well-being of the patient. All these factors may relate to health.”
In other words, Doe defined “woman’s health” so broadly, it opened the door to abortions in the second and even third trimesters. As one person I know put it, “The Supreme Court defined ‘health’ so generally, a woman can say ‘I’m sick of being pregnant’ and by that reasoning, can get an abortion.”
That 1973 court opinion was not unanimous. Perhaps as a precursor to how it would split the country, it was a 7-2 split ruling. One of the two dissenters was Justice Byron White, a liberal appointed to the high court by President Kennedy (D). White called the court’s decision in Roe “an exercise of raw judicial power.” Moreover, to hear many today bewailing the fall of Roe vs. Wade like the loss of a Holy Grail, those justices who handed down Roe may contain some surprises, especially to modern readers who have grown up in a culture based on racial- and gender-identity politics.
All nine justices from that 1973 bench are long dead. With the exception of Justice Thurgood Marshall, the first and only black SCOTUS judge in 1973, all the others were white. All nine were men. Six had been nominated by Republican presidents, and only three by Democrats– a lopsided 2 to 1 ratio. Ironically, four of them, including Chief Justice Warren Burger, had been nominated by soon to be disgraced President Richard Nixon (R). All were older, in their upper 40s and above. None were known to be homosexuals. None were transgenders. (In fact, it seems that word did not even exist at the time, as it did not appear in print until the next year, 1974.) (For a deep dive into the members of that fateful 1973 high court, read this. To see the group photo of these nine judges lacking much racial or gender diversity, click here.)
Simply put, it’s ironic to hear the Left lionize the 1973 Court, a group of old, almost all white, Republican men. In contrast, considering ethnic and gender diversity, last week’s Court had three women, one of whom is Latina. Yet, the Left is now apoplectic, and directing much of its ire and hatred toward Justice Clarence Thomas, the Court’s senior member, a black man. What happened to “celebrate diversity”? (Today, June 30, white Justice Stephen Breyer retired and Ketanji Brown Jackson was sworn in, being the first black woman on the high bench.)
Speaking of “diversity,” many do not want you to know the racist views of Margaret Sanger, early abortion proponent and founder of what became Planned Parenthood. For example, in a 1939 letter Sanger wrote, “we don’t want the word to go out that we want to exterminate the Negro population….” (source) It is a fact that the toll of abortion has fallen most heavily on the black community over the past half century. After June 24, one commentator wrote that, by helping overturn Roe, Justice Clarence Thomas had saved more black lives than BLM ever will.
But back to 1973. The initial public reaction was muted. In what may go down as one of the biggest misstatements in all time, and also evidence of how out-of-touch the New York Times writers were then, it is my understanding the NYT headline the next day read, “High Court Settles Abortion Question.”
The issue did not stay settled for long, however. In fact, it triggered a 40-plus-year tug of war threatening to tear apart the fabric of our nation. Year by year, a growing and robust National Right to Life Movement grew, led by the National Right to Life Committee (NRLC.org) and countless other groups and individuals across the land. (The NRLC website is currently down, evidently the work of hackers. Seemingly without irony, the “pro-choice” hackers are anti-choice about the NRLC getting its message out or readers accessing its content.)
By the late 1970s, the pro-life movement was gradually becoming a cultural and political juggernaut. It helped propel Ronald Reagan to the White House twice, George Bush Sr. once, George W. Bush twice, and most recently, Donald Trump in 2016.
Advances in medical technology began to provide ultrasound images of the developing baby in the womb. More recent advances show that unborn children can feel fetal pain at twelve weeks and even develop heartbeats as soon as three weeks after conception.
For a culture where “follow the science” has become a mantra, all scientific and technological advances have pointed to the sophisticated development of unborn children. Specifically, the technological breakthroughs all prove the humanity of unborn children. They are clearly not “blobs of tissue.” Compared to today, the medical technologies and knowledge available in 1973 were crude and undeveloped.
In fact, the 1973 US Supreme Court so politicized the issue by taking it into their own hands, “abortion” gradually came to dominate almost every presidential election and SCOTUS nomination hearing. Who can forget the disgraceful character assassination directed against nominee Brett Kavanaugh during his hearings? (And we wonder why almost no one in their right mind wants to go into public service anymore….) Over the decades, pro-life and pro-abortion protests and vigils in front of the Supreme Court building have been commonplace.
This brings us to 2022. Based on the new scientific evidence regarding fetal pain, the Mississippi legislature and governor passed a 2018 law to ban most abortions after fifteen weeks. Jackson Women’s Health Organization, the only group in Mississippi performing abortions, sued. The resulting case was called Dobbs v. Jackson Women’s Health Organization.
The case wound its way up through the legal system, and last fall SCOTUS agreed to hear the case. The fact that the justices agreed to hear the case indicated to many that they might possibly overturn Roe. According to Roe, the Mississippi law would be illegal. However, on June 24, six justices upheld the Mississippi law and thus also the principle of federalism and the right of the voters of Mississippi to chose their own officials and make their own laws.
Each court ruling begins with a syllabus, a brief summary of the judges’ decisions and reasonings. The June 24 syllabus included this bombshell upending the 49 years of the Roe regime. “The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives(….)”
To show you how each justice voted, and to demonstrate that “elections have consequences” and “black robes matter,” behind each name is the president who nominated him or her to the high court. These six voted to uphold the Mississippi law:
Justice Clarence Thomas (Pres. Bush Sr.-R)
Chief Justice John Roberts (Pres. Bush Jr.-R)
Justice Samuel Alito (Pres. Bush Jr.-R)
Justice Neil Gorsuch (Pres. Trump-R)
Justice Brett Kavanaugh (Pres. Trump-R)
Justice Amy Coney Barrett (Pres. Trump-R)
These three voted to strike down the Mississippi law:
Justice Stephen Breyer (Pres. Clinton-D) As mentioned earlier, Justice Breyer retired on June 30, 2022
Justice Sonia Sotomayor (Pres. Obama-D)
Justice Elena Kagan (Pres. Obama-D)
This is where the numbers and details can get a little confusing. Although SCOTUS voted 6-3 to uphold the Mississippi law, the majority also voted 5-4 to go one step further and strike down Roe v. Wade and another major pro-abortion ruling from 1992, Casey v. Planned Parenthood. This is because Chief Justice John Roberts sided with the voters of Mississippi to make their own laws, but he thought ending Roe and Casey now was too sudden.
Normally, a chief justice provides leadership and sets the overall tone for the court. However, the fact that Roberts in this case tried to straddle the middle and after seven months’ of deliberations failed to get a single other judge to agree with his position makes him now appear weak to many. As one opinion piece put it, “The lonely chief: How John Roberts lost control of the court.”
Chief Justice Roberts seems to be a living example of the warning from former British Prime Minister “Iron Lady” Margaret Thatcher. She famously said, “Standing in the middle of the road is very dangerous; you get knocked down by the traffic from both sides.”
The court’s majority not only ruled that abortion should be a state issue, but they also explained that Roe was wrongly decided in the first place, 49 years ago. By violating the founding principle of federalism and relying on fuzzy earth science terms like penumbra, that 1973 court produced what many consider to be one of the most grotesque and flawed court decisions in recent generations. Indeed, only Americans in their 50s or over can even remember a pre-Roe America.
One strident argument against the June 24 ruling was that it violates the legal idea of stare decisis. That principle is, courts should respect earlier cases and rulings when handing down cases, and not just issue random rulings willy-nilly. Obviously, a functioning legal system requires a healthy respect for precedent and norms.
However, one must also be able to recognize and correct mistakes. For example, in March 1857, the Supreme Court in a 7-2 lopsided vote issued the infamous Dred Scott decision. (Ironically, Roe v. Wade was decided 7-2 also.) The 1857 Court, comprised mainly of old white Southern Democrats who were plantation owners and thus also slave owners, claimed that the Constitution could not offer US citizenship for anyone of African descent, regardless of being enslaved or free, and thus no blacks could ever enjoy any of the rights and privileges that the Constitution confers upon American citizens. That outrageous ruling helped light the fuse for the election of our first Republican president, Abraham Lincoln, in 1860, and the start of the Civil War in 1861.
The 1896 Plessy v. Ferguson case ruled “separate but equal” was alright. In other words, it was fine that blacks and whites be segregated into different facilities like schools, trains, waiting rooms, bathrooms, etc., as long as the facilities were of “equal quality.” Of course, that never happened. The Jim Crow Democrats always kept the best of everything for the whites.
In 1944, in Korematsu v. United States, the high court upheld the right of the Democrat Roosevelt administration to place Japanese-Americans in internment camps scattered across remote parts of the American West, in the wake of the 1941 Pearl Harbor attack.
So, when critics say the court never should have dared reverse course and overturn Roe, proponents counter that the Supreme Court has been wrong many times before. Plus, when a mistake has been made, the right thing is to admit it, correct it, and move in the right direction.
Sen. Warner (D-VA), in his emailed response to the June 24 decision, fumed that that court had overturned almost 50 years of “settled law.” This too is bunk. Roe v. Wade was never law; it was a court decision. Laws originate in Congress as bills, and they only become a law when the president makes it one by signing his name. Maybe Sen. Warner and those who erroneously call Roe a law should watch a refresher of Schoolhouse Rock’s “I’m Just a Bill.”
Seemingly bereft of any creativity or independent thought, many protestors have been parroting the same cliché since the bell bottom jeans and disco ball days of the 1970s: “My Body My Choice.” To which I say: “What part of the vaccine mandates do you not understand? Did you fight those Biden mandates with the same tooth and nail intensity you’re now fighting the US Supreme Court?”
Despite the evident failures of the Covid vaccines, and the fact that all the “get the vaccine and you’ll never get sick or spread it” hype turned out to be untrue, the Biden Administration is ignoring its own “My Body My Choice” rhetoric. As we head into the July 4th holiday, one major headline is: “US Army announces unvaccinated National Guard, Reserve won’t train or get paid.” In fact, despite the war in Ukraine and unrest in East Europe and East Asia, the Pentagon is threatening to fire unvaxxed service members.
The leftists’ meltdowns and hysteria have been at times outrageous. Liberal MSNBC talk show host Mika Brzezinski on June 29, the Monday morning after the SCOTUS ruling, called the Democrat Party the “last, best hope against fascism.” (To find out how good the Democrats are at fighting fascism, try to ask the 40 million Afghans whom President Biden and his administration threw under the bus last year and now live under the nightmare of Taliban-style Islamofascism.) Brzezinski is claiming that the Democrats are the guardians of democracy, but actually, she has it reversed.
Everyone knows that the judicial branch, with its unelected judges serving life terms, is the “least democratic” of the three branches. The act of bottling up the abortion issue in the hands of nine unelected people for almost 50 years was undemocratic. In contrast, and to correct that error, on June 24 the court sent the issue back to the states. That way, voters can chose their own legislators and governor to make the laws most favorable for that state. And when a lawmaker strays too far from the will of his or her constituents, that politician will find him – or herself out of office. That is democracy.
Although most of the protestors probably don’t see their own irony, their angry meltdowns in front of the august Supreme Court building and elsewhere across the country actually prove the correctness of the June 24 decision. Simply put, you can’t directly influence the Supreme Court. They have their office for life, will never face an election, and in a way, answer to no one.
So, howling vainly at the sky because you can’t get the Supreme Court justices to give you what you want is proof that the Supreme Court is a very tiny, distant, insular group and thus your political attention should be focused where you actually have a vote: on your local and state officials.
So now what?
The battles will move and have already moved to the 50 states.
In another irony, most of the violent protests after the June 24 ruling were in places like New York City, Chicago, and California…places that will surely keep abortion legal for now anyway. In Los Angeles, one attacker used a makeshift flamethrower to try to kill a police officer, and a stretch of a busy interstate highway was shutdown temporarily.
That brings us here to Virginia. The Blue Ridge Pregnancy Center in Lynchburg was the first in the nation to be vandalized after the release of the Dobbs decision. The vandals broke windows and spray-painted graffiti, including the menacing threat: “IF ABORTION AINT SAFE YOU AINT SAFE!” In a seeming link between the vandalism and the Democrat Party, one message painted on a wall read: “Vote blue lol.” Moreover, hackers had taken down that center’s Facebook page. Lynchburg Police are asking for help to identify the four suspects in the dark-of-night vandalism raid. As reported here, the Lynchburg community is rallying together to send a message that hate and violence have no place in Central Virginia.
For a more complete list of churches, pregnancy centers, etc. nationwide that have been attacked by pro-abortion extremists recently, click here.
Last November, voters in the Commonwealth shocked national observers by electing a pro-life governor, lieutenant governor, and attorney general after those seats had been occupied by pro-abortion politicians for about a dozen years. Also, the 100-member House of Delegates flipped back to a pro-life leadership, although by a slim 48-52 or so margin. The State Senate, which was last chosen in the anti-Trump year 2019, has a narrow 21 Democrat – 19 Republican split. One or two of those Democrats occasionally make claims about being “pro-life” but usually vote pro-abortion.
Shortly after Roe was overturned last Friday, Governor Youngkin (R-VA) called for the General Assembly to draft a bill to protect unborn from abortion after 15 weeks, the age at which they can feel fetal pain. Relating to our region, the governor tapped State Sen. Newman (R-Lynchburg) and Del. Kathy Byron (R-Bedford Co.) to help draft that legislation.
Here in the Roanoke Valley, we may actually soon help tip the statewide balance between the pro-life and pro-abortion forces. A grossly-gerrymandered district I dubbed “The Johnnymander” has helped prop up Sen. John Edwards (D-Roanoke City) in office for years. Thankfully, however, fairer voices have prevailed and that grotesquely manipulated district will soon be on the ash-heap of history. In the upcoming state senate November 2023 elections, most of the Roanoke Valley will (finally) be in one unit. Sen. Edwards has a staunch pro-abortion voting record, in contrast to that of Sen. David Suetterlein (R-Roanoke Co.), who has a strong pro-life record.
In the House of Delegates, Democrat Del. Salam Rasoul represents Roanoke City with a straight pro-abortion voting record. In contrast, the Republicans who represent the areas around the Roanoke City enclave like Del. Chris Head (Roanoke/Botetourt Co.) and Joe McNamara (Salem) have pro-life voting records.
Above I pointed out where I disagree with Mika Brzezinski. However, I agree with her on one crucial point. Her beleaguered call and suggestion to her audience was: Vote.
Indeed. And now that the issue is back to the states where it belongs, it’s more important than ever that we inform ourselves and vote intelligently, because those votes count more now than ever.
Even life depends on it.
The majority’s written opinion on Dobbs v. Jackson, on the SCOTUS official website. (Note: the first eight pages are a syllabus, that is, an overview and summary. The actual opinion, as written by Justice Samuel Alito, begins on page 9. Although much of the opinion is written in “legalese,” it is accessible to the layperson. Sen. Ted Cruz (R-TX) claims Justice Alito wrote the opinion “for the ages” and urges all interested citizens to read the opinion in its entirety.)
Dr. Albert Mohler offers a Special Edition of his popular podcast “The Briefing,” and explains the context and importance of the June 24 ruling from a specifically Christian worldview.
– Scott Dreyer