Radically out of sync with public opinion, the foundations of Roe are inherently unstable

By Dave Andrusko

Editor’s note. This first appeared in the Jewish Journal.

Two days after the Jan. 22, 1973, Roe v. Wade decision was handed down, the editorial page of The New York Times — pro-abortion then, even more pro-abortion now — announced that the 7-2 decision “could bring to an end the emotional and divisive public argument” and “will end the argument if those who are now inveighing against the decision as a threat to civilization’s survival will pause long enough to recognize the limits of what the Court has done.”

That gross misstatement established the template that still exists in many quarters: pretend that Justice Harry Blackmun’s decision hadn’t gutted the abortion laws of all 50 states, some very protective, others virtually allowing abortion on demand well into the second trimester. And because the abortion regime established 47  years ago was — and is — so wildly out of sync with public opinion, its foundations remain inherently unstable.

The irony is that from the get-go, even “pro-choice” scholars knew how slip-shod Blackmun’s opinion was. Way back in 2005, for example, Benjamin Wittes wrote, “In the years since the decision an enormous body of academic literature has tried to put the right to an abortion on firmer legal ground. But thousands of pages of scholarship notwithstanding, the right to abortion remains constitutionally shaky. … [Roe] is a lousy opinion that disenfranchised millions of conservatives on an issue about which they care deeply.”

Irony Number 2: As recent scholarly works have demonstrated, in its earliest years the pro-life movement was filled with liberal Democrats. A commitment to protecting the vulnerable and the powerless was the reason at one time I was up to my elbows in Democratic Party politics. Alas, when adherence to abortion on demand, for any reason or none, became a litmus test, virtually all liberal Democrats chose party over principle.

But the Movement’s diversity is richer than ever — everything from non-sectarian organizations such as National Right to Life (NRLC) to Feminists for Life to Secular Pro-Life. That is the genius of the pro-life cause. You can oppose killing unborn babies — including those capable of experiencing horrific pain as they are torn limb from limb — for a host of reasons. Pigeon-holing the pro-life movement as “right-wing” or Christian-only will never end; it will just be even more foolish.

Science and technology and even television commercials have made the job of persuasion infinitely easier. When my wife was pregnant with our first child, I had to pretend I could make out what I saw on the ultrasound. Nowadays like hundreds of millions of grandparents, when we went to the obstetrician, we could see our grandkids in four-color “real time,” meaning you could see them running all over the place. The facial features were distinct, not blurs, and no one had to help me figure out (literally) heads from tails.

The debate in the 1990s over partial-birth abortions changed the trajectory of the abortion debate, as Gallup once conceded. Pro-lifers are convinced the debate over banning the dismembering of living unborn babies and  the abortions of pain-capable children will have no less an impact.

NRLC believes this will help reveal a truth buried for decades: A majority of Americans oppose — and always have — the reasons 90%-95% of all abortions are performed.

All this support when the mainstream media is so hostile to our cause that they didn’t even have to feign indifference to the trial of an abortionist convicted of three counts of first-degree murder for aborting late-term babies alive and then murdering them by slicing their spinal cords. Where would public opinion be if people understood that West Philadelphia abortionist Kermit Gosnell was no outlier? That he is the real face of the Abortion Industry that fights any and all attempts to have their facilities inspected without prior notice? (Wonder why?)

Pulitzer Prize-winning editorial writer Paul Greenberg once wrote, “The right to life must come first or all the others can never take root, much less flourish. As in the Declaration of Independence’s order of certain unalienable rights, among them ‘life, liberty and the pursuit of happiness.’ Note which one is mentioned first. And for good, logical reason.”

The movement toward life and away from death is inexorable. Remember that the next time someone pretends it is pro-lifers who are the outliers.