Bemoaning the “Death of Roe v. Wade”

By Dave Andrusko

United States Supreme Court

So what happens when the irresistible force meets the immovable object? What happens when a renewed and reinvigorated pro-life Movement aggressively introduces legislation that an increasingly bedraggled pro-abortion Movement is unable to derail? Well, this “object” blinks, and then complains about its own lack of conviction for failing to take into court laws which (they insist) are clearly unconstitutional.

Let’s start by looking at the spate of high-profile pro-legislation that has come in waves into state legislatures. If you read people such as Dahlia Lithwick (“The Death of Roe v. Wade” at, “It hardly bears observing here that most of these measures are against the law.” These “measures” include the agenda-shifting Pain-Capable Unborn Child Protection Act, tighter abortion clinic regulations (or in some cases the first pass at such regulations), an extended waiting period before a woman’s unborn child can be aborted, and laws which require that information (including the fetal heartbeat) and a clearly visible ultrasound be made available to abortion-vulnerable women.

“Most” are “against the law”—presuming meaning Roe v. Wade in light of all the subsequent decisions, including the last two—Stenberg v.Carhart and Gonzalez v. Carhart? Let’s think what’s implied and assumed in that statement.

First, it is hypocritical in the extreme for pro-abortionists to get angry that the very same strategy they used to dismantle the protective state laws of all 50 states—gradualism/incremental—we use to re-erect the protective walls that states formerly had which pro-abortionists demolished through the courts. We’re just supposed to accept that Roe and its progeny were inexorable examples of “progress”—never to be rethought– when, in fact, they widely overshot where the public was, and is, on abortion. What incremental change does is to harmonize the state of the law with the state of public opinion, which Roe haughtily ignored.

Second, the premise undergirding the legal attacks in the 1960s on the protective state laws was that new knowledge was available—that things had changed since the laws were first put on the books—and that once the justices understood this, they would agree the laws were anachronisms.

Guess what? Time has NOT stood still since 1973, unfortunately for pro-abortionists. Out of sight, out of mind—maybe 38 years ago, but not today, not with sonography available everywhere and visual evidence of that no-longer-invisible passenger attached to refrigerator doors all over America.

So is the Pain-Capable Unborn Child Protection Act something the Court could not, would not, and should not consider? As Lithwick (and scores of other pro-abortionists) laments, abortion advocates are wrong to accept laws—fail to take them to court–out of fear that the High Court will uphold them. This counsel reflects their notion that pro-abortionists should stick by their principles and that they might as well anyway, since if these laws keep getting passed abortion will be effectively unavailable in large swathes of the country.

But in light of Kermit Gosnell, the abortionist charged with eight counts of murder, are we really to believe that putting some teeth in toothless abortion clinic regulation is plainly “against the law”? Please.

And if the Court is serious about making it possible for women to make an informed decision (anathema to PPFA, which makes millions off its abortion trade), why would the justices balk at making it possible for women to see the child whose life is about to be taken?

Likewise, pro-abortionists can trot out the usual medical associations which have long been in the back pockets of the Abortion Establishment to deny that the unborn can experience pain at 20 weeks post-fertilization. But defenders of those laws can do them one-two-three better with study after study demonstrating that the unborn CAN experience pain by this developmental marker. (See

And, by the way, Lithwick et al. keep insisting the High Court has drawn viability as the line in the sand—the point at which a state’s “compelling interest” kicks in. Two things.

First, why should we assume the Court can learn nothing? The issue of pain capacity is new. Second—and raised by Justice O’Connor early in her career on the bench (before she forgot it)–the point of viability is very close to the 20-week benchmark the Pain-Capable Unborn Child Protection Act uses.

Coming full circle, there is good reason pro-abortionists are shying away from taking these laws into court: “There’s a decent chance they’d lose,” as a story we talked about yesterday concluded.

These laws are a logical extension of measures the High Court has approved of in the past and/or cite new evidence the justices need to consider if they are not going to be tethered to abortion jurisprudence that no longer makes any sense—medically, jurisprudentially, or ethically.

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