I listened out of both duty and interest to the oral arguments before the Supreme Court, and followed along on Twitter and a number of people live-blogging the proceedings. Since the Court accepted the case, I’ve assumed that it would uphold Roe v. Wade but amend it by permitting supposedly severe restrictions before the commonly accepted point of viability point of 24 weeks. That is still a likely outcome; several justices asked pointed questions about the significance of viability. But for the first time it felt like Roe might be overturned. I recommend our analysis on pages 8-9, but I have a few observations that did not quite fit or was cut from the final copy of that long article.
I was unimpressed by the three Democrat-appointed, obviously pro-abortion justices, Elena Kagan, Sonya Sotomayor, and David Souter, were not asked to solicit views on the U.S. Constitution. Justice Sotomayor embarrassed herself by mouthing tiresome abortion activist talking points. They also repeatedly insisted that the Court must respect its own precedent, never mind that the Supreme Court has overturned itself more than 200 times. What makes Roe so special?
I know many pro-lifers and conservatives are unhappy with Chief Justice John Roberts, but I found his questions about the meaningfulness of the point of viability to be jurisprudentially important. I think it is very telling that no one, not even the pro-abortion lawyers who were arguing that viability was the point that should demarcate when the state has a possible interest in limiting abortion, could explain why viability is anything but an arbitrary point. It looks like a meaningful point, but so did the trimester approach; so does the gestational age when the heartbeat is detectable. Perhaps the arbitrary point is defensible, but so far I have not heard a good defense of any of them.
Following the hearing, there were a lot of bad takes in the press and online. For example, minutes after they concluded, Noah Smith, an economist, tweeted: “OK, who’s going to be first to let conservatives know that since people of color are disproportionately high users of abortion, banning abortion will hasten the ‘Great Replacement’.” The Great Replacement is the concern among white nationalists that they are being replaced by people of non-European descent. Smith’s implication is that the racist Right – which is often the same thing to people like Noah Smith – should support abortion, and maybe they do. But most pro-lifers know that abortion disproportionately targets visible minorities in the United States, and are highly critical of the eugenic roots of abortion in America.
In Ms. magazine (which turned 50 last month), Shanti Trivedi argued against Justice Amy Coney Barrett’s questions regarding adoption and safe haven laws that allow women to drop off unwanted children in a safe environment and free of criminal responsibility (see And Then There Was This, p. 14). Trivedi wrote for National Public Radio, without abortion, foster care would be swamped by unwanted children, so, “in a state like Texas, where one out of five children is poor and foster children already sleep on the floor of agency offices, life is already bleak.” There are so many problematic presumptions of this line of thinking, including that women would continue to become pregnant without the backup plan of abortion to protect them from their decisions and, more problematically, that life is not worth living when one is poor or facing challenges. I’m not aware of surveys of children who grew up in foster homes or who are poor that ask if they would prefer they were never born, but my guess is that if there were any they would skew heavily against be killed by abortion.
Anna North wrote for the “data-driven” and reliably pro-abortion Vox website against Coney Barrett’s presumption that adoption is an alternative to adoption. “The argument that adoption can effectively replace abortion assumes that people who choose the former are able to simply sidestep all the challenges associated with parenthood,” wrote North. “But people who choose adoption still become parents — they just don’t raise their children. They often experience significant grief and loss, for which they struggle to get support in a culture that views adoption through rose-colored glasses.” While I agree that the pro-life side can have rose-colored glasses when it comes to adoption, the dreary and dire tones of the abortion side is equally, if not more, incorrect. First, “people” – by which the excruciatingly politically correct writer means women – are still “parents” (read: mothers), whether they keep, kill or put their child up for adoption. Abortion just means the woman is the mother of a dead child, not that she ceased being a mother. Mothers that place their children for adoption may grieve, but so do mothers of aborted children. What society and the medical community must do better is support mothers in their grief. But the greatest fallacy in North’s argument is that the child is better off dead and that the solution to a pregnant mother’s problems, whatever they may be, is found in the destruction of the child she is carrying inside her.
This brings me to an excellent piece by the New York Times columnist Ross Douthat, “The Case Against Abortion,” that appeared in its pages on the day of the hearing and online the day before. Douthat said that “there is no way to seriously deny that abortion is a form of killing,” and that the days of believing that the embryonic or fetal human being was not a person belongs in “a less advanced stage of scientific understanding” than ours. “We know from embryology … not Scripture or philosophy, that abortion kills a unique member of the species Homo sapiens, an act that in almost ever other context is forbidden by law.” (Note: Justice Sotomayor claimed that only philosophers debate whether fetal life is a person, and one is tempted to reply that only bad philosophers would argue that it is not.) If Douthat is accurate – and he is – then the “affirmative case for abortion rights is inherently exceptionalist” to the prohibition against killing a human being. Being an exception, however, the pro-abortion side is the one with the burden of proof to explain why in the case of abortion, killing should be allowed. He goes through a number of arguments as to why it should be permitted and finds none of them persuasive for a general abortion license (he would permit a rape exception); he quickly rebuts the arguments preborn children are appreciably different than people are other stages of human development due to factors such as brain development or dependence upon others. (He also recognizes that “rigorists” such as Peter Singer who do apply these criteria consistently to the preborn and already born tend to support a broad euthanasia license.) Douthat also has a unique argument against a feminism grounded in abortion, saying that “the default to abortion” has prevented “other adaptations that would make American life friendlier to women” that would support them in their motherhood including flexible work hours and better pay for part-time jobs. Douthat said there are “a multitude of other ways to be a feminist … that do not require yoking its idealistic vision to hundreds of thousands of acts of violence every year.”
What was missing in the Supreme Court hearings, and in most discussion about abortion, is the reality of abortion: that it is the violent decapitation, dismemberment, and disembowelment of tiny preborn babies. And when we remember this, the onus is on the pro-abortion side to explain why it should be allowed. We pro-lifers are not the ones who should be on the defensive over our positions on abortion.
Thank you, dear readers, for subscribing to The Interim and letting it inform and activate you on life and family issues. It is an honour and a privilege to edit this paper to serve the pro-life movement. The last two years have been difficult for many of us as society seemed to be turned upside down by the pandemic and the government’s response to it, yet when this paper was founded nearly four decades ago, society seemed to be turned upside down by its acceptance of moral insanity as normal and this paper has stood as a beacon for human flourishing. We at The Interim wish you a happy new year in which we all flourish so we can, together, lead our culture back to moral sanity.