If you’ve somehow managed to avoid the news, legal abortion — the nuclear football of American politics — is finally nearing an end zone:

The Supreme Court has voted to strike down the landmark Roe v. Wade decision, according to an initial draft majority opinion written by Justice Samuel Alito circulated inside the court and obtained by POLITICO.

The draft opinion is a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights and a subsequent 1992 decision – Planned Parenthood v. Casey – that largely maintained the right. “Roe was egregiously wrong from the start,” Alito writes.

“We hold that Roe and Casey must be overruled,” he writes in the document, labeled as the “Opinion of the Court.” “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

It’s an unprecedented leak of a first draft of a majority decision on a vote that is not even final. But as news got out, the country erupted. Here’s the scene from in front of the Supreme Court in the middle of the night last night:

The politics of abortion in America are irredeemably cursed. Both sides of the issue are deeply entrenched and highly polarized, and what results is a sort of endless rhetorical quagmire that escalates and recedes with the political seasons. It is an issue that has proven, because of its divisiveness, to be much more useful when kept in the status of perpetual process than as a legal destination. Promises to repeal or strengthen Roe tickle our ears during every election cycle. But nothing ever substantively moves.

Until now.

And yet even after this bombshell report, what will truly change? Both those who sense hard fought victory and those terrified of defeat seem not to realize is that even were the leaked decision made official this afternoon, the status quo essentially remains. Overturning the extremely tenuous legal arguments in Roe and Casey — which sought to torture the language of the Constitution into coughing up non-existent rights that clearly weren’t there — only returns this issue to the states, where it belongs. Those states where the people have already voted for restrictions on abortion will see a change in policy. Those where the people have chosen to to maintain access to abortion will not. The rest becomes a question for the voters, to be carved out over time.

Some 59% of the American public say they support abortion in at least some cases. Sending this issue back to the states just gives them a say on this issue, and an opportunity to vote accordingly. And why shouldn’t they have one?

Why shouldn’t advocates of both positions want this?

Well, fantasies of judicial activism aside, I think one side wants people to have the choice. It just so happens, it’s not the side that has made a slogan out of supporting “choice.”

Here’s the real issue: Pro-lifers know that medical technology supports their cause. Advances in ultrasound imaging alone have provided unprecedented visual evidence of the humanity of the unborn. Anyone who has seen “4D” images of their child in the womb cannot forget what they know. They can see clearly that their little girl has her mother’s nose, or that their little boy is a spitting image of his older brother. This technology takes the abstract concept of a hidden being and reveal his true humanity. Pro-lifers also know — and this may shock some of you — that people tend not to be big fans of murder, especially of children. Using science to help folks see that this is, in fact, what is happening, is incredibly powerful. A legal framework where people can be thus persuaded and vote with that knowledge in mind is one in which laws can actually be be changed. And that terrifies those on the Left who know exactly what abortion is.

And make no mistake: they do know.

Here’s Faye Wattleton, Planned Parenthood’s longest-serving president, talking to Ms. Magazine way back in 1997:

I think we have deluded ourselves into believing that people don’t know that abortion is killing. So any pretense that abortion is not killing is a signal of our ambivalence, a signal that we cannot say yes, it kills a fetus.

Self-delusion ultimately fails. Here’s Naomi Wolfe, in a 1995 piece she wrote for The New Republic, entitled “Our Bodies, Our Souls: Rethinking Abortion Rhetoric”:

War is legal; it is sometimes even necessary. Letting the dying die in peace is often legal and sometimes even necessary. Abortion should be legal; it is sometimes even necessary. Sometimes the mother must be able to decide that the foetus, in its full humanity, must die.

Camille Paglia was brutally candid when she wrote:

I have always frankly admitted that abortion is murder, the extermination of the powerless by the powerful. Liberals for the most part have shrunk from facing the ethical consequences of their embrace of abortion, which results in the annihilation of concrete individuals and not just clumps of insensate tissue. The state in my view has no authority whatever to intervene in the biological processes of any woman’s body, which nature has implanted there before birth and hence before that woman’s entrance into society and citizenship.

The honesty we saw on this issue two decades ago is much harder to find today. L

iberals are still shrinking from the ethical consequences of abortion, which is why they cannot abide a real conversation on this issue with real legislative consequences. The histrionic reaction to this SCOTUS leak is a direct parallel to the collective progressive freakout over Elon Musk’s acquisition of Twitter. Musk has made clear that he believes that Twitter represents the new public square, and that it’s vitally important that a level playing field for free speech be inherent to the platform. You would think anyone who proudly wears the label of “liberal” would be full-throated in their support for such an effort. But the fact is, an increasing number of progressive positions simply cannot thrive in a marketplace of ideas where real choice exists. Instead, they have come to depend on heavy-handed authoritarian suppression of opposing views, without which those views would have to stand on their merit alone.

In the case of Roe, there simply is no merit. The 1973 SCOTUS forced a right not found in the Constitution to exist through sheer legal fabrication. This made up “Constitutional right” is the only thing that has kept abortion from being a 10th amendment issue all these years, left to the power of the people in their respective states. This was a purposeful mutilation of our cornerstone legal document; a deception in the service of consolidation of power where it explicitly did not reside. As Harvard Law professor John Hart Ely wrote in the Yale Law Journal the year Roe was decided:

“[Roe] is not constitutional law and gives almost no sense of an obligation to try to be.”

“What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure. Nor is it explainable in terms of the unusual political impotence of the group judicially protected vis-à-vis the interest that legislatively prevailed over it.… At times the inferences the Court has drawn from the values the Constitution marks for special protection have been controversial, even shaky, but never before has its sense of an obligation to draw one been so obviously lacking.”

Harvard law professor
The Wages of Crying Wolf: A Comment on Roe v. Wade,” 82 Yale Law Journal, 920, 935-937 (1973)

What is perhaps most frustrating about all of this is knowing that no amount of ink spilled, no number of arguments, no matter how perfectly made, will change anyone’s mind. Those of us who have been making the case for many years already know all too well the futility of these attempts. What we have is a societal moral crisis, and it cannot be remedied with a legal solution.

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Don’t mistake my use of the word “moral” to be a euphemism for “faith.” I believe that the problem abortion represents is not fundamentally religious in nature. Because I am not scientifically illiterate, even were I to give up trying to work through my discomfiting agnosticism and instead resort to a less demanding atheism, I can’t imagine ever changing my views on this matter. A fetus is a human child. From a very early phase of development — before the threshold we think of as viability — he or she can also feel pain. That we have resorted to killing so many of these little children, and have done so predominately to allow us to maintain our unrestricted fulfillment of sexual desire while discarding the commensurate responsibility for what nature has deigned is the ultimate purpose of sex — babies — is quite likely the most petty yet barbarous atrocity the human race has ever given itself over to. It’s also the reason why, despite the fact that I now so strongly question the authenticity of the Catholicism that has formed my life, I am inclined to continue to agree with her teachings on human sexuality.

Divorcing procreation from sex created a catastrophically slippery slope. Contraception, which lies at the festering heart of this false ideological separation, often turns out to be more placebo than prophylactic, offering a false sense of confidence to those who prefer to copulate without consequence than to shoulder the burden of parenthood. As a father of eight children, I understand the desire to have all of the delight and none of the diapers. Probably better than they do. I am acutely aware not just of the blessings that come with procreative sex, but the real, lasting sacrifices that accompany parenthood, often casting deep shadows over its attendant joys. And in my more selfish moments I, too, have wondered what it would like if I had chosen to be a globe-trotting, free-spirited fornicator instead of a guy trying to keep his shit together in a house full of chaotic, loud, and needy small people, for whom I am responsible. But I am deeply aware that such a life, however fun it may superficially seem to the young and the horny, inevitably leaves a trail of tiny bodies in its wake. It cannot be otherwise.

And no amount of hedonistic pleasure or career advancement is worth that.

But judging on the vitriolic reactions of many now screaming their opinions into the public square, my belief is not universally shared. As one commentator put it:

The toxicity of our ideological cesspool is about to go up by a significant degree. I wouldn’t be surprised at all to see violence. When members of the Leftist cognoscenti are shrieking about abortion being “sacred,” one wonders about the rest of their pseudo-religious framework. Just what sort of blood-soaked altars are they worshiping at?

For now, we can only wait to see what comes of this. Public pressure on the SCOTUS cannot change their decision or the fundamental integrity of the court will be destroyed. But if they stand firm, hell may well be unleashed, fueled by four decades of unfettered human sacrifice.


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