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Last Tuesday, Jan. 22, was the 40th anniversary of the United States Supreme Court's infamous 1973 decision in Roe v. Wade. This case single-handedly invalidated the abortion laws of virtually all the states. It made abortion, which is the killing of unborn babies, a constitutional right. The Court called it "terminating a pregnancy." From crime to right overnight.
Millions of what would have become future voters and taxpayers, roughly half of them female, died or were terminated as a consequence. Playgrounds and schools sometimes became ghost towns. Governmental pyramid schemes like social security and medicare border on bankruptcy for lack of new investors.
Jan. 22, 1973 was also the date on which Lyndon B. Johnson, our great civil rights president, died. He had pushed through the landmark Civil Rights Act of 1964 and the Voting Rights of 1965, and thus did much to remedy the baleful consequences of slavery and segregation that had blighted our country's history. He had been inspired, of course, by the Rev. Martin Luther King, Jr., whose birthday we just commemorated. Their goal was to make real the promise of "equal justice under law" inscribed over the entrance to the Supreme Court and guaranteed by the Fourteenth Amendment to the U.S. Constitution. Roe involved a new denial of the principle of human equality.
For almost 20 years after Roe, presidents were elected on platforms to overturn this abortion of a precedent, new Supreme Court justices were appointed by those presidents, and there was hope that this slaughter of the innocents could be ended. Instead, in the 1992 case of Planned Parenthood v. Casey, the Supreme Court, led by a Republican-appointed threesome of Justices Kennedy, Souter and O'Connor, reaffirmed what it called the "central holding" of Roe v. Wade. Professor Michael Stokes Paulsen rightly calls this "the worst constitutional decision of all time," worse than Dred Scott (which had ruled that African-Americans were not persons entitled to sue in federal court, and that slavery was constitutionally protected), worse than Plessy v. Ferguson (which had validated segregation as "separate but equal"), worse even than Roe itself.
Actually, Roe had made a move that was familiar from the slavery precedent: in deciding that the human fetus was not a person within the meaning of the Constitution, unborn babies did not possess rights but were in effect property that were the object of other people's rights, just like slaves had been.
As Professor Paulsen wrote, "The crux of Casey's analysis, as a matter of legal doctrine, was that Roe should be adhered to 'whether or not mistaken,' 'with whatever degree of personal reluctance any of us may have,' 'even on the assumption that the central holding of Roe was in error,' because of the perceived damage it would do to 'the people's acceptance' of 'the Court's legitimacy' and thus its 'power' to 'speak before all others' for the Constitution and 'declare what it demands.'" (http://www.thepublicdiscourse.com/2012/06/5772/).
In other words, in spite of the mounting body count, the Court should stick to its guns and dig in deeper on the right to abortion because its institutional prestige and power were at stake. And so we, the born survivors of the abortion right, can at most nibble away at the edges of the right to an abortion with provisions like informed consent laws and 24-hour waiting periods, without, however, putting an "undue burden" or "substantial obstacle" on a woman actually obtaining an abortion.
It is remarkable that the Roe anniversary occurred just two days after the second inauguration of President Barack Obama, unquestionably our most pro-abortion president ever. He is the one, after all, that is mandating in his Affordable Healthcare Act that private individuals and organizations, including those that are religiously and conscientiously opposed to abortion, pay for abortion-causing morning-after pills. As an Illinois state senator, he had voted against the Born-Alive Infants Protection Act, which would have protected the lives of children that survive abortions. As a U.S. Senator, he voted against the federal ban on partial-birth abortions, a law which even the U.S. Supreme Court upheld under Casey.
About abortion law, Obama stated as early as 1998, "Abortions should be legally available in accordance with Roe v. Wade." In unveiling his gun-control proposals in the wake of the tragic Newtown, Connecticut massacre of innocent first-graders, Obama said, "This is our first task as a society, keeping our children safe. This is how we will be judged." You be the judge.
Dwight G. Duncan is professor at UMass School of Law Dartmouth. He holds degrees in both civil and canon law.