The Future of Roe

The Supreme Court’s infamous 1973 abortion decision remains an unsettling — and unsettled — issue

AS A SPECIAL ASSISTANT to President Ronald Reagan in 1986, I was privileged to work on the nomination of Antonin Scalia to be a member of the U.S. Supreme Court. At the time, I could not imagine that 30 years later we would be considering a new nominee to fill the vacancy resulting from his untimely death.

President Reagan had pledged to appoint judges who respect “the sanctity of innocent human life.” Americans knew his language was to be understood in light of his repeated criticism of the Supreme Court’s 1973 abortion decision in Roe v. Wade. With the nomination of Justice Scalia, he kept his promise, and Scalia was unanimously confirmed by the Senate.

Whenever there is a Supreme Court vacancy, we are told by supporters of Roe v. Wade that the decision is “settled law.” But such supporters face this difficulty: Roe v. Wade will never be settled law, because Roe v. Wade is founded on the lie that we do not know that the victim of every abortion — an unborn child — is a human being.

There is another difficulty as well: Since Roe v. Wade, millions of women have concluded that instead of being helpful, abortion is deeply hurtful.

In America, judicial decisions that are contrary to the dignity of the human person simply cannot be sustained over time. This is the lesson we learned long ago from those tragic court decisions which held that African-Americans were not entitled to the equal protection of our laws.

Roe v. Wade will never be settled constitutional law as long as Americans say, “It is not settled.”

This was precisely the approach President Abraham Lincoln took regarding the Supreme Court’s 1857 decision in the Dred Scott case and laws on slavery. It was the right approach then, and it remains the right approach today.

Virtually unrestricted abortion continues to be morally unsettling for a majority of Americans. More than four decades after the Supreme Court handed down its decision, abortion remains one of our most controversial issues.

At the time, Justice Byron White called the court’s decision in Roe v. Wade an exercise of “raw judicial power.” His dissenting opinion remains one of the strongest critiques of the case. Appointed by President John F. Kennedy, Justice White continued to be a strong critic of Roe v. Wade during the 20 years he remained on the Supreme Court.

He later wrote, “The Judiciary, including this Court, is the most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or even the design of the Constitution.”

“Raw judicial power” has not convinced Americans that Roe v. Wade is right.

In recent years, our Knights of Columbus-Marist polling has consistently shown that more than 8 in 10 Americans would limit abortion — at most — to the first three months of pregnancy. Almost 6 in 10 would limit it — at most — to cases of rape or incest or to save the life of the mother, and that includes the majority of Americans who describe themselves as “pro-choice.”

Almost two-thirds of Americans say that our abortion rate is too high. And 6 in 10 Americans continue to believe that abortion is morally wrong.

During my address to last year’s Supreme Convention, I stated that we will never build a culture of life if we continue to elect public officials who defend a legal regime of unrestricted abortion. The same must be said of those who are appointed as our judges.

As we look ahead to how the new president will keep his promise to be pro-life, we remember the words of the current occupant of that office who at the beginning of his administration famously said, “Elections have consequences.”

When it comes to defending the lives of millions of unborn children, we sincerely hope so.

Vivat Jesus!