America’s court-imposed and fiercely contested abortion regime, which has survived numerous legislative and legal attacks since its inception in 1973, with restrictions allowed in recent years for late term abortions, seems likely to change by the end of June 2022. By then the Supreme Court will have announced its decision concerning a Mississippi law prohibiting abortion after 15 weeks of pregnancy. The possible outcomes were discussed by a panel at the Family Research Council’s PrayVoteStand Summit on October 7. Mary Szoch, Director of FRC’s Center for Human Dignity interviewed Josh Hammer, Opinion Editor for Newsweek and constitutional scholar, Allison Centofante, a pro-life activist who has managed external relations at the pro-life organization LiveAction and the Alliance Defending Freedom, Kurt Kondrich, also an activist with a special concern regarding the abortion of Down’s Syndrome children, and his daughter, Chloe Kondrich, who has Down’s Syndrome.
Hammer briefly described the legal history of abortion starting with the Roe vs. Wade decision. This decision established a constitutional right to abortion in 1973 with no basis in the Constitution. (Earlier decisions found a constitutional right to contraception for married couples and later unmarried persons, again with no basis in the text of the Constitution beyond its general concern for freedom), Hammer believes that it was the “worst constitutional decision since the Dred Scot decision in 1857.” There was an expectation that Roe vs. Wade would be overturned in 1992 in the Planned Parenthood vs. Casey case. But instead of being overturned, Roe was upheld by a plurality of the court, to say that abortion could be restricted after “fetal viability,” (currently held to be 22 weeks) but maintaining a constitutional right to abortion before that. Additionally, no “undue burden” could be placed on the right to abortion. The new Mississippi law, noted above, which prohibits abortion after 15 weeks, was declared unconstitutional by lower courts on the basis of the Casey standard, and will reach the Supreme Court in the Dobbs vs. Jackson Women’s Health Organization case, on December 1. It will be decided and announced by the end of June 2022. This case offers an opportunity to overturn both Roe and Casey.
What kind of culture did Roe create in America, Szoch asked. Centofante said that today we have a society in which a woman can kill her unborn child, and many do, although over 100,000 families are waiting to adopt an infant. At this point, over 60 million children have been aborted. She said that post-abortive parents should speak out about their experiences, rather than “hiding in the shadows.” Post-abortive mothers (and fathers) are told by the Left that they have nothing to mourn. But many post-abortive parents may be reluctant to speak and say anything about their sorrow in view of the fact that those on the Right who agree that abortion is wrong know that the post-abortive mother in fact killed her baby. Christians need to have “a culture of love and forgiveness and healing” in dealing with those who have been involved with abortion. She added that according to the regime set up by Roe and Casey, children can be aborted because of their race, sex, disability, or for any reason.
Kondrich related that when his wife was pregnant, the couple was told that they were at high risk of having a child with Down’s Syndrome, They were repeatedly urged to have pre-natal testing done. After inquiring why a pre-natal test was suggested, Kondrich was told that it would give the couple the opportunity to decide if they wanted to keep the child. He said that when people are targeted for death because they don’t meet cultural expectations, it amounts to “genocide.” Abortion is “the ultimate execution of people who are innocent.” Acceptance of the principle that people who don’t meet cultural expectations may be killed is extremely dangerous, he said (beyond being immoral in itself). It could sanction the death of people with any characteristic that is disfavored by the prevailing culture. Moved by the fact that medical personnel routinely recommend pre-natal testing with a view to abortion for people at risk for having Down’s Syndrome children, Kondrich began a life of activism against abortion, together with his Down’s Syndrome daughter, Chloe. Among other things, he endeavors to educate people about the abilities of people with Down’s Syndrome. He and his daughter were able to get the “Prenatal Down’s Syndrome Education Act” (“Chloe’s Law”) passed in Pennsylvania.
Hammer observed that Margaret Sanger – a critical figure in the birth control movement of the early twentieth century and founder of organizations that later became Planned Parenthood – was a proponent of “race-based eugenics.” Early Nazi experiments that preceded the establishment of death camps used the work of these eugenicists and were conducted on “life unworthy of life.” Despite this legacy, eugenics, although not by that name, continues to be influential today. Some countries, such as Iceland, have the objective of eliminating children with Down’s Syndrome by abortion.
What are the possible results of the Dobbs case, Szoch asked. Hammer replied that a lower court judge for whom he had clerked, James C. Ho, said in his concurrence voiding Mississippi’s ban of abortion after 15 weeks that there is in fact no constitutional right to abortion, but he was bound by binding Supreme Court precedent. In lowering the limit for abortion from 22 weeks (currently considered viability) to 15 weeks, the Mississippi law challenges both Casey vs. Planned Parenthood, which set the viability standard, and ultimately Roe vs. Wade, which declared a constitutional right to abortion. The exact legal question in the Dobbs case is thus whether or not all laws against pre-viability abortions are unconstitutional. While odds might seem to favor the overturning of Roe vs. Wade with a 6-3 Republican majority, three justices appointed by Trump, and two others solidly opposed to Roe, the odds also favored overturning Roe in 1992, when it was sustained by a plurality in Casey. As far as the Dobbs case is concerned, Hammer listed four possibilities:
- The Supreme Court could uphold Roe and Casey, affirm the lower court ruling, and declare the Mississippi law unconstitutional – this Hammer did not consider a high probability.
- The court could affirm the “undue burden” standard of the Casey decision, while upholding the Mississippi law on the grounds of advances in the scientific knowledge of embryology that lowered estimates of fetal viability.
- Directly overturn Roe and return the regulation of abortion to the states.
- Dispense with the “undue burden” standard but “fabricate” a new standard that both upholds the Mississippi law and retains the doctrine that abortion is a constitutional right
Szoch said that we need to pray both for the outcome of the case and the Supreme Court justices. In particular she said to pray for the justices’ “courage” and “intellectual honesty,” and that Roe and Casey will be effectively overturned. She noted that since 1973, medical science has determined that unborn children can feel pain. Pain medication is now used in operations conducted on children in the womb, separate from the medication used for the mother.
She then asked what other changes we are seeing in American society regarding abortion. Centofante said that despite increased knowledge about abortion, including the abortion procedures that are involved, the cultural left has convinced many women that moral autonomy is the correct moral standard, and that the interests of unborn children conflict with the interests of their mothers. On the other hand, among young people, there is a “new generation of pro-lifers.” These young people “have seen 4-D technology, they have seen their siblings … they know what an abortion does to a child, they’ve heard the stories of post-abortive men and women.” She said some volunteers at pro-life organizations have to be turned away as they are too young. However, pro-abortion forces remain strong and impassioned. As a result of the Dobbs case, “There will be an all-out assault” on the justices “from a very well-funded Left.” Centofante agreed with Szoch that Christians should focus on praying for the justices over the next couple of months.
People should be aware through social media, community involvement, personal conversations, etc., that pro-life advocates are committed to helping women in crisis pregnancy situations, Szoch urged. Pro-lifers should also make their support for the rights of unborn children known to state legislators. If Dobbs should effect the at least practical overturning of Roe, they can act to urge legislatures to make abortion illegal. Legislative offices will count a single contact as representing the views of a hundred or a thousand voters, depending on local demographics.
Kondrich observed that destroying the eggs of endangered turtles or eagles is illegal in various jurisdictions. How much more should unborn humans be protected. Yet over the past century over one billion unborn children have died of abortion, according to the Abortion Worldwide Report. Some countries, he noted, such as Iceland, have wiped out their Down’s Syndrome children through abortion. He said it is “our duty as followers of Jesus Christ to get out there and be a loud voice.”
How can unborn children be protected even in more liberal jurisdictions, Szoch wanted to know. Hammer replied that “everyone who is a person of faith needs to pray,” concerning the Dobbs case, pointing out that although it will be heard on December 1, it will not likely be announced until June 2022. Assuming that the worst should happen, and the Mississippi law protecting unborn children is declared unconstitutional, then there is also the consideration advanced by some conservative jurists, such as Robert George and John Finnis, that the wording of the Fourteenth Amendment’s equal protection clause prohibits abortion.
This reasoning would make abortion illegal in all 50 states. It arises from the observation that unborn children were recognized as persons under the English common law at the time the Fourteenth Amendment was ratified. Opening up consideration of this alternative then makes the possibility of returning judgment about abortion to the states seem moderate. Since Section V of the Fourteenth Amendment empowers Congress to enforce the first four sections, Section V could be used by Congress to ban abortion nationally. Finally, a pro-life President could issue an executive order recognizing unborn children as persons, thus again invoking the Fourteenth Amendment to ban abortion nationwide.
Pro-life advocates should realize not everyone will be persuaded of the pro-life position before abortion is prohibited, Centofante said. Slavery became illegal when many people still believed in it, she noted. Also, while compromises may be important in achieving protection for unborn children incrementally, all deserve the right to life, and pro-life advocates should be ready to defend the right to life in any situation in encounters with those unpersuaded.
Kondrich admonished that we must remember to follow the Word of God and not the world. Hammer said that it is important to remember to vote. The current administration, he said, “is totally unhinged” about abortion, attempting to enact a national law (the so-called Women’s Health Protection Act) which would codify a right to abortion to the ninth month of pregnancy for any reason or no reason at all. The days of the Clinton Administration’s rhetoric of making abortion “safe, legal, and rare” are over, indeed, they are “anathema” to the contemporary Democratic Party. Elections have consequences, and on this (and many other issues) the effect of not voting is real and devastating. Not voting will make current pro-life activity “moot and academic.”
Although not mentioned by the panelists, the outcome of the Dobbs case will affect not only the United States, but the world at large, as other countries and their highest courts have shown a tendency to take their cue from U.S. Supreme Court decisions. This aspect of the case, along with others, was discussed by Austin Ruse of the C-Fam organization on Sept. 30, and will be covered in a subsequent article.
.View Part 2 here